Opinion
December 23, 1975
Appeals from decisions of the Workmen's Compensation Board, filed October 16, 1973 and March 5, 1974, as amended by decision filed October 24, 1974, which denied claimant's application for a reopening based upon newly discovered evidence. This claim was previously before this court upon an appeal from a decision of the Workmen's Compensation Board which had denied benefits upon the ground that there was no employer-employee relationship (Matter of Young v Young, 40 A.D.2d 739). Thereafter leave to appeal was denied by the Court of Appeals (Matter of Young v Young, 31 N.Y.2d 647) and the board thereupon considered an application by the claimant for a reopening and reconsideration. The application was based upon the allegation that, during the oral argument before the board held on December 1, 1970 in regard to the merits of the claim, the attorney for the carrier had asserted that compensation insurance premiums had not been collected on the claimant's wages by the insurance carrier, whereas in fact payroll audits had been conducted by the insurance carrier following the accidental injury sustained by the claimant and such audits had resulted in premiums being collected upon the basis that the claimant was an employee. The board denied the application upon the finding that the alleged evidence "does not constitute new evidence". The record does not disclose that as a factual matter the question of whether or not the insurance carrier had collected premiums for the claimant as an employee was ever in issue. Furthermore, the alleged new evidence would only relate to events occurring after the accidental incident and as such would not establish the employer-employee relationship existence prior to the date of the injuries. On the present record it cannot be said that the decision of the board was arbitrary or capricious. Decision affirmed, without costs. Herlihy, P.J., Sweeney, Koreman, Main and Reynolds, JJ., concur.