Opinion
May 7, 1952.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Claimant sustained compensable injuries on February 21, 1941, and thereafter received several awards for reduced earnings on account of various periods of partial disability between July 25, 1941, and October 20, 1943, all of which were paid to him by the appellants. At a hearing held on December 26, 1944, claimant, although represented by an attorney, was himself absent and unable to attend because of his service in the Army Transport Service. At that time his claim for further partial disability from the date of his last award, October 20, 1943, to March 7, 1944, was pending and had been partially litigated, and to the present time it has not been completed. Claimant's attorney at that time requested an award on the basis of proof previously given but this was objected to by the appellants upon the ground that they wished to contest the matter further when claimant was present, and accordingly the referee, not knowing when claimant would be able to be present, stated that the case would be closed until such time as claimant requests a hearing. The foregoing and the other undisputed facts and circumstances which occasioned this disposition then made of the matter were such as to demonstrate that further proceedings were contemplated ( Matter of Casey v. Hinkle Iron Works, 299 N.Y. 382, 385), and amply support the board's decision that it did not constitute an actual closing of the case, but rather was merely a direction that it be withheld from the calendar until claimant was available to be present, and that therefore when the case was resumed in April, 1949, appellants' liability was not excluded by the provisions of section 25-a Work. Comp. of the Workmen's Compensation Law. Decision unanimously affirmed, with costs to the Workmen's Compensation Board.