Opinion
December 29, 1942.
Appeal from State Industrial Board.
Present — Hill, P.J., Crapser, Bliss, Schenck and Foster, JJ.
The sole contention of the appellants relates to the denial of their application for review of the award by the full Board, consisting of five members, instead of by three members, in connection with the reclassification of the disability from a permanent partial, to a permanent total disability. Appellants maintain that section 15, subdivision 6-a, of the Workmen's Compensation Law (Cons. Laws, ch. 67), requires that where a disability has been reclassified as permanent total disability, or permanent partial disability, upon application a review shall be had by the entire Board and no decision or award shall be made except by the affirmative vote of at least three members thereof. Claimant-respondent and State Industrial Board contend that section 25-a is the dominant controlling section. Section 25-a provides in so far as here applicable, as follows: "Notwithstanding other provisions of this chapter * * * and if an award is made it shall be against the special fund provided by this section. * * * No such award shall be made unless three members of the board shall have reviewed the claim and except by affirmative vote of at least two of such three members." The State Industrial Board has found, following the unanimous opinion of the three reviewing members of the Board, that the appellants are not entitled to review by the full Board, and the application of the Special Fund for a review by the full Board was denied. The finding of the Board that section 25-a is controlling was in accordance with the provisions of the Workmen's Compensation Law ( Matter of Stapholtz v. Rothman Co., 260 App. Div. 818) and the application of the Special Fund for a review by the full Board was properly denied. The award should be affirmed. Award unanimously affirmed, with costs to the State Industrial Board.