Opinion
February 14, 1966
Appeal by the emloyer and its carrier from a decision and award of the Workmen's Compensation Board. The appellants raise questions of last employment and apportionment (Workmen's Compensation Law, § 44) and of the refusal by the Referee to accept a written statement of claimant in addition to his sworn statement under oath. With respect to the questions of last employment and apportionment, these issues were not raised in the written application for review nor in the oral argument before the board and thus cannot be considered on this appeal (see, e.g., Matter of Hedlund v. United Exposition Decorating Co., 15 A.D.2d 973, mot. for lv. to app. den. 11 N.Y.2d 646; Matter of Chersi v. Lulich Constr. Co., 19 A.D.2d 672). Similarly we need not now pass on the refusal of the Referee to accept into evidence claimant's sworn statement since the statement bears solely on the question of apportionment, which remains to be determined. Decision affirmed, with one bill of costs to respondents filing briefs. Gibson, P.J., Herlihy, Taylor and Aulisi, JJ., concur.