This is an appeal by the employer and its insurance carrier from a decision of the Workmen’s Compensation Board, filed April 22, 1970, which modified awards made in two separate claims of the claimant so as -to discharge the Special Fund For Reopened Cases (Workmen’s Compensation Law, § 25-a) from liability and charged the appellants with the same. The Special Fund was charged with liability by the Referee and it initiated the review before the board which resulted in the decision appealed from.
The claimant suffered an injury to a finger of his right hand on May 17, 1960 and to his left hand on December 9, 1960 and duly filed claims for such injuries. Hearings were held on June 29, 1962 and August 1, 1962 at which hearings the claimant did not appear or produce medical evidence of the disability although he was represented by counsel at both hearings, and the Referee closed the cases for failure to produce medical evidence. Medical reports were filed on January 9, 1968 and the board reopened the claims and restored the same to the Referee’s calendar. It is apparent that the reopening occurred more than seven years after the happening of the accident and more than three years past the last payment of compensation. (Apparently there were no payments of compensation made in the present claims.)
Before the board the appellants and the Special Fund contended that the claim should be dismissed because in the absence of tolling, the board could not reopen a claim previously closed without an award where more than seven years had passed from the date of the accident. (See Workmen’s Compensation Law, § 123; all statutory references hereinafter are to the Workmen’s Compensation Law.) The Special Fund took the further position that the closing of the claims was not intended to be final and, accordingly, liability should have been assessed against the appellants. The board adopted the contention of Special Fund.
In our opinion the consideration of whether or not the claims were outlawed by section 123 is not determinative because the liability should have been charged as a matter of law to the Special Fund and section 25-a specifically provides for the reopening of claims after the period of seven years. Section 25-a provides in part as follows: “ 1. Notwithstanding other provisions of this chapter, when an application for compensation is made by an employee * * * and the employer has secured the payment of compensation in accordance with section fifty of this chapter, (1) after a lapse of seven years from the date of the injury or death and claim for compensation previously has been disallowed or claim has been otherwise disposed of without an award of compensation * * * subject to the provisions of section one hundred and twenty-three of this chapter, testimony may be taken, either directly or through a referee cmd if cm award is made it shall he against the special fund provided hu this section.” (Emphasis supplied.)
In Matter of Berlinski v. Congregation Emanuel of City of N. Y. (29 A D 2d 1036, 1037) the court noted that it was “ the obvious intent of the Legislature to transfer liability for stale claims to the Special Fund ”. In Matter of Pizzarello v. Town of Harrison, Police Dept. (31 A D 2d 878, 879) the court noted that as to the liability of Special Fund ‘ ‘ the passing of time is under ordinary circumstances the test ”. Subsequently, in Matter of Zedler v. Ruppert (33 A D 2d 1088, 1089) the court stated: “ The Berlinski case emphasized that where the right of the claimant to receive compensation will not be prejudiced, the liability for such compensation will be imposed upon the Special Fund if the claim for reopening is in fact made after the three and seven year limitations.” (Emphasis in original. Cf. Matter of Ammirata v. Weidy, 34 A D 2d 717, 718.)
In certain cases fact patterns may emerge which permit the board to find as a fact that the case was never closed and was merely restored to the Referee calendar. However, the general rule is that liability for those claims which have been noted as closed is to be imposed upon the Special Fund. (See, e.g., Matter of Stoever v. Sheraton Astor W. L. Hotel Operating Co., 29 A D 2d 597, 598—closing—after carrier stopped payments— as a procedural device to force the claimant to submit to an impartial medical examination; Matter of Scimeni v. Welbilt Stove Co., 32 A D 2d 364, 367 — claim filed before disablement occurred.) It thus appears that in the present case the board should have first determined whether or not there would be any prejudice to the claimant by imposing liability on the Special Fund before considering whether or not it might be able to treat the claim as one which had never in fact been closed with an intention of finality.
On the question of prejudice to the claimant, section 25-a provides in subdivision 1 that awards made pursuant to the provisions of section 25-a may ‘‘ not be retroactive for a period of disability * * * longer than the two years immediately
Upon the present record it does not appear that the closing of the claim was patently intended to be a mere adjournment or that it was an improper exercise of power and, accordingly, the board erred as a matter of law in imposing liability on the appellants (Matter of Berlinski v. Congregation Emanuel of City of N. Y., 29 A D 2d 1036, supra).
The decision should be reversed, and matter remitted for further proceedings not inconsistent herewith.