Opinion
October 21, 1966
Appeal by the Special Disability Fund from a decision of the Workmen's Compensation Board, which charged the appellant with liability under the provisions of subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. The sole issue on this appeal is whether or not the respondent insurance carrier timely filed its claim for reimbursement from the appellant. Subdivision 8 of section 15, as pertinent, provides that after the first 104 weeks of disability, the employer or insurance carrier shall be entitled to reimbursement from the Special Disability Fund and that the notice of the right to reimbursement must be given within that period, or in the event of the reopening of a case, no later than the determination of permanency upon such reopening. As in Matter of Sullivan v. Dutchess County Highway Dept. ( 11 A.D.2d 549, mot. for lv. to app. den. 8 N.Y.2d 707), the board did not index or open a file on this case for a delayed period of time but there appears in the record a report of injury by the employer and two reports by the attending physician filed within the prescribed period of 104 weeks. The failure of the employer to file for reimbursement within the prescribed time is fatal as this record does not establish any relief under the only exception to the rule, the reopening of a case and the establishing of permanency. Decision reversed, and matter remitted for proceedings not inconsistent with this decision, with costs to the Special Disability Fund. Gibson, P.J., Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.