Opinion
January 13, 1943.
Appeal from State Industrial Board.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Schenck, JJ.
Claimant was injured on August 18, 1933, and had an award for eight weeks' compensation. His injury consisted of a double hernia, for which he underwent an operation on November 10, 1933. Thereafter the case was reopened because he had suffered a hernia recurrence on each side, and it was then disclosed that he was also undergoing certain physical changes of the body resulting from complications induced by the operation. In 1935 a lump sum settlement was reached at $2,300, and an award was made on May 3, 1935, for this amount which was paid on May 6, 1935. On November 6, 1941, claimant applied for a reopening and asked for medical and surgical attention. It appears that as the result of his operation he is now suffering from a eunuchoid syndrome and that medical treatment is necessary. The State Industrial Board held that the $2,300 lump sum settlement, approved on May 3, 1935, is still in effect and has not been drawn against by reason of any disability because claimant's earnings up to the application for a reopening have exceeded or equalled his earnings at the time of the accident, and there has been no reduction in earning capacity. It held that three years had not expired since the date of last payment as defined in section 25-a, subdivision 7, of the statute, which provides as to a lump sum payment that the date of last payment shall be considered as the date to which the amount paid in the lump sum settlement would extend if the award had been made on the date the lump sum payment was approved at the maximum compensation rate which is warranted by the employee's earning capacity. Under the facts in this case the amount of the lump sum settlement has not as yet been reduced by any reduction in claimant's earning capacity and the three-year limitation from the date of the last payment of compensation, under the statute, has not yet begun to run. Decision unanimously affirmed, with costs to the State Industrial Board.