Citation Numbers: 32 A.D.2d 345
Judges: Gibson
Filed Date: 7/1/1969
Status: Precedential
Modified Date: 1/12/2022
Appeal is taken by an employer and its insurance carrier from a decision of the Workmen’s Compensation Board which awarded benefits for permanent partial disability resulting from an accident of March 28,1947; the period of the award appealed from being December 28, 1962 to January 7, 1966, during all of which time claimant was hospitalized for treatment of a mental illness unrelated to the accident.
The respondent board’s brief denies that the 1965 decision either presented or determined the supposed issue of claimant’s nonentitlement to benefits, despite his physical disability, for such time as he was hospitalized for an unrelated mental condition; but argues alternatively that even if that issue was decided, the board’s present decision now before us was authorized, nevertheless, in the exercise of the plenary powers conferred by sections 20, 123, 142 and 150 of the Workmen’s Compensation Law.
Despite the unsatisfactory shortened record and agreed statement, it is reasonably clear from the notice of Referee’s decision filed October 20, 1965 and from the board’s order of restoral filed February 17,1966, each of which is printed in full, that the basic issue determined by the 1965 decision was that of medical causation, and not that of legal nonentitlement under the theory later disapproved in PapTcoff (supra); but even if that theory be considered a factor in the Referee’s prior decision, the board had power to overrule it, nevertheless.
The board’s broad jurisdiction includes the power, on its own motion or on application, to modify or rescind a Referee’s decision (Workmen’s Compensation Law, § 150, subd. [b]); and, more important, its “ continuing ” jurisdiction embraces the power of ‘ ‘ modification or change with respect to former findings, awards, decisions or orders relating thereto, as in
In short, appellants’ “ law of the case” theory has never been held applicable to Workmen’s Compensation Law decisions at the administrative level and, in view of the broad powers conferred by section 123, if for no other reason, could not be so applied. We find nothing to the contrary in Matter of Anderson v. Johnson Lighterage Co. (214 App. Div. 743, affd. 241 N. Y. 523) where the prior decision, holding basic jurisdiction lacking, was a judicial. decision—that of the Appellate Division—and was successfully interposed as a bar to the reopening, after it had been sustained on other appellate levels as well (182 App. Div. 152, affd. 224 N. Y. 539, cert. den. 248 U. S. 574).
The decision should be affirmed, with costs to the Workmen’s Compensation Board.
Herlihy, Reynolds, iStaley, Jr., and Cooke, JJ., concur.
Decision affirmed, with costs to the Workmen’s Compensation Board.