Claim of McCulla v. Alco Products, Inc.

submit further evidence against permanent and total disability and numerous hearings were had during the period between December 31, 1935 and March 11, 1940. There resulted a voluminous record of medical and lay evidence upon the issue tendered by the employer’s contention that claimant was malingering. During this period an impartial specialist, who had previously found total disability and whose findings were adopted by the board and quite clearly furnished the basis for the previous award, again testified, following his additional examination of claimant. He said that.his tests exposed claimant’s malingering and that claimant was not blind. Other medical evidence as well as the testimony of private detectives and other lay witnesses would, if accepted by the board, have required the same conclusion. In rebuttal, claimant submitted some lay testimony but no medical evidence. In this situation, it was obvious that if the original opinion of the impartial specialist thus recanted was the basis of the board’s previous findings, and it seems clear to us that it was, a determination adverse to claimant would follow unless the board could justifiably accept other medical testimony in the old record, although that testimony proceeded bn a different theory which the board, inferentially at least, had once rejected. Thereupon, at the hearing of March 11, 1940, claimant’s attorney requested an adjournment, apparently for the purpose of producing medical proof. On shortly receiving a notice of hearing, the attorney requested that the hearing be cancelled, stating, “We have no testimony available at this time and nothing could be done.” Accordingly, the parties were notified to disregard the notice, “ease to be held in abeyance until claimant’s Atty. advises he is ready.” Thereafter the case was placed in the “ closed files ”, according to the board’s memorandum decision of March 18, 1954, which held that this action “was merely a clerical error”. In 1951, more than 11 years after the last hearing, a board examiner communicated with claimant’s attorney as to the case, by a letter which is not in evidence. The attorney replied: “When the above captioned ease was put in the closed files, we attempted to get additional medical evidence. Shortly after that, Mr. MeCulla left Schenectady, and apparently gave up the thought of producing that evidence. We fear that at this time, we cannot get that evidence and we never hear from Mr. MeCulla.” In 1952, a board investigator located and interviewed claimant and reported that claimant “is still definitely interested in his claim and desires further medical examination for evidentiary purposes.” Hearings followed and the award appealed from was made. The board’s jurisdiction being continuing (Workmen’s Compensation Law, § 123), the limitations of time provided in section 123 and in subdivision 6 of section 25-a, upon which appellant relies, do not apply to open eases and appellant’s contentions are valid only if this case was closed, with the result that a later award of compensation could be made only upon “ application therefor ” within the periods of time specified. In Matter of Casey v. Hinkle Iron Works ( 299 N. Y. 382 ) and again in Matter of Diskin v. 99 Wall St. Corp. ( 279 App. Div. 1103 , motion for leave to appeal denied 304 N. Y. 986 ) the question was presented as to whether a case had been closed within the contemplation of subdivision 1 of section 25-a, so as to shift responsibility to the Special Fund for Reopened Cases (which is not here involved), and those decisions seem to us applicable to the problem of construction of the statutory provisions with which this case is concerned. In Casey, one question posed was “whether a ease referred by the board to its ‘ abeyance file ’ has been closed so that a further request for compensation is an application to reopen within the scope of section 25-a.”. (P. 384.) Remarking that “the labels upon the files of the board ” are not determinative, the court said: “ For the purpose of section 25-a, a case is closed when it has been referred to the abeyance file because

no further proceedings were foreseen.” (P. 385.) We applied this test in the Biskin case and held that a direction that the ease he closed until claimant should request a hearing did not constitute an actual closing of the ease in the light of the undisputed proof that further proceedings were then contemplated. Doubtless further proceedings after March 11, 1940 were contemplated here, subject to the inferential proviso, made clear in the light of the subsequent correspondence, that claimant should be able to obtain medical proof. At that time claimant’s attorney expected to be able within two weeks to advise the board as to another hearing. However, claimant’s complete inaction for some 12 years thereafter, considered in the light of his attorney’s letters written in 1940 and 1951 and in the light, also, of the fact that this ease involved no change in claimant’s condition or in any other circumstance during the long interim, leads to the inescapable conclusion that claimant abandoned any idea of proceeding further. Certainly, claimant has advanced no explanation to refute the inference that such was the fact, prior to the board investigator’s visit in 1952. Thus, while the ease was in the “closed” liles and regardless of whether or not it had previously been considered as merely in abeyance (as in the Casey case), there clearly came a time when no further proceedings were contemplated. We do not consider that under the Casey and Biskin decisions the status of a ease at the last hearing need continue indefinitely, at least when, as here, the contemplation of further proceedings was clearly, though inferentially, upon an “if” basis. It seems to us that it would thwart every reasonable intendment of the statute to hold that the case remained open indefinitely upon the request for an adjournment, subject to notification within two weeks as to readiness to proceed, followed by no change in any of the circumstances hut by 12 years of inaction with no indication of any mitigating factor contributing to so excessive a delay. The case having been closed, a further application by claimant was necessary and none was timely made. This conclusion renders unnecessary our consideration of the merits. Decision and award reversed and claim dismissed, with cost to appellant against the Workmen’s Compensation Board.

Foster, P. J., Bergan, Coon and Gfibson, JJ., concur.