Claim of Cohen v. Ashford Plumbing Co.

Hinman, J.: The State Industrial Commission at first made an award of sixty dollars for four weeks’ disability at fifteen dollars per week, which was paid. Later the State Industrial Commission decided to “ rescind previous award,” saying “ case disallowed—condition not the result of accident.” Thereafter the claimant wrote a letter to the Commission requesting a rehearing which was granted by the State Industrial Board. The original award was reinstated which had been rescinded and an additional award for six weeks’ compensation was made and the case closed. There are two questions in this case. The appellants raise the question as to the right of the State Industrial Board to reopen a case after there has been a denial of an award. This was settled in the case of Beckmann v. Oelerich & Son (174 App. Div. 353, a reopening after decision denying an award). (See, also, Kriegbaum v. Buffalo Wire Works Co., Inc., 182 id. 448; affd., 224 N. Y. 621; Spaduccino v. Hayes & Co., 180 App. Div. 37; affd., 223 N. Y. 681; Eggleston v. Shinola Co., 191 App. Div. 930; affd., 229 N. Y. 622; Metcalf v. Firth Carpet Co., 196 App. Div. 790.) What was later said by Mr. Justice Woodward in the case of Conley v. Upson Co. (197 App. Div. 815) was not adopted by the court as the basis of its decision. The decision in the Beckmann Case (supra) remains the precedent in this court. The theory of that decision was that section 74 of the Workmen’s Compensation Law (now section 123) must be liberally construed. We find no justification in reversing the precedent established by this court in view of the uniform practice followed since that decision and especially since the Legislature by the Laws of 1922, chapter 615, has now eliminated any possible doubt on the subject. Sections 22 and 123 of the Workmen’s Compensation Law, as so amended and revised, now expressly add the words “decision or order” to the former word “award” and the words “ awards ” and “ decisions ” to the former words “ findings ” and “ orders ” and expressly permit that which this court has uniformly held to be permissible under the statute prior to such amendment. The second question resolves itself into a simple one of fact as to [263] whether the claimant was suffering from a sprained back for the period covered by the compensation or whether he was suffering from sciatica. The claimant had not been sick prior to the accident and the doctor who treated him testified that he found no signs of sciatica. There being evidence to sustain the finding of the Board that the claimant “ sustained injuries in the nature of a contused back and sprained lumbar muscles,” we are bound by that finding. (See Workmen’s Compensation Law, § 20.) The award should be affirmed, with costs in favor of the State Industrial Board. H. T. Kellogg, Acting P. J., and Van Kirk, J., concur; Hasbrouck, J., dissents, with opinion in which Kiley, J., concurs.