Opinion
May 11, 1949.
Present — Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ.
Appeal by employer and its insurance carrier from an award of compensation for disability due to an occupational disease. On July 31, 1935, claimant sustained an accidental injury when a bucket fell on him and injured his back. He received an award of disability compensation and the case was closed on September 25, 1935. Subsequently the case was reopened upon a claim of further disability. Several hearings were held and the board finally determined that claimant's subsequent disability was not related to the accident of July 31, 1935. Claimant was advised that the proof seemed to indicate that his subsequent disability was occupational in nature, and thereafter in 1946 he filed a new claim on the theory of an occupational disease. The board found that claimant became disabled as the result of spondylolisthesis, an occupational disease, on July 12, 1940. The board also found that the employer was not prejudiced by the failure of claimant to give written notice of disablement within the period prescribed by statute on the ground that the employer had actual knowledge of claimant's condition within the statutory period. It also found that the employer made advance payments of compensation within the meaning of section 28 Work. Comp. of the Workmen's Compensation Law. And it refused to reopen the case so as to permit appellants to produce further medical proof to show that claimant's condition was the result of the accident he sustained on July 31, 1935. There is substantial evidence to sustain the findings of the board, and the board was justified in refusing to grant a further reopening of the case. Award unanimously affirmed, with costs to the Workmen's Compensation Board.