Claim of Lopa v. Brillo Manufacturing Co.

Appeal by an employer and insurance carrier from a disability award made claimant by the Workmen’s Compensation Board, and from its decision relieving the Fund for Reopened Cases from liability therefor and fixing it upon appellants. Claimant sustained a compensable injury while at work in the employment of employer-appellant on March 16, 1928, and received a disability award therefor by the former Industrial Board, dated May 31, 1929. The award was paid, the case closed and claimant continued in his same employment. There was evidence that the injury later produced such disabling effects that claimant was unable to work for certain intervals in 1943 and 1944, his last and total disability extending from May 8 to August 6, 1944, during all of which periods the employer-appellant paid him his full wages; and that as early as July 10, 1944, the employer had notice claimant was claiming compensation on account of his old injury. The case was reopened on claimant’s applications dated July 31 and August 3, 1944. The liability cas.t upon the fund by the statute (Workmen’s Compensation Law, § 25-a), does not accrue until seven years from date of injury and also three years frdm the date of the last payment of compensation have elapsed. In this case there was evidence that the latter requirement did not obtain. The payment of compensation which avoids the fund’s liability need not have been paid under the direction of a formal award by the board as might be considered from the literalness of the addition of subdivision 7 of said section 25-a. (L. 1940, ch. 686; Matter of Coole v. New York Central R. R. Co., 296 N. Y. 576.) Decision and award affirmed, with costs to the Workmen’s. Compensation Board. All concur. [See post, p. 939.]