I vote to affirm the board’s decision. In order to determine if section 25-a of the Workmen’s Compensation Law applies, it is first necessary to determine whether the case has been closed. In Matter of Casey v. Hinkle Iron Works (299 N. Y. 382, 385), the Court of Appeals held that liability may be imposed against the Special Fund “ only in a case which has been closed and is reopened by fresh application ” and stated: “ 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” (emphasis added). Whether in a given case further proceedings were contemplated is a factual issue (Matter of Stoever v. Sheraton Astor W. L. Hotel Operating Co., 29 A D 2d 597, 598; Matter of Abelowitz v. Sterling Tool Co., 26 A D 2d 875, mot. for lv. to app. den. 19 N Y 2d 577), the mere use of the term “ closed ” by the Referee not being determinative (Matter of Diskin v. 99 Wall St. Corp., 279 App. Div. 1103, mot. for lv. to app. den. 304 N. Y. 986).
The time limitations of section 123 do not apply to open cases (Matter of McCulla v. Alco Prods., 5 A D 2d 898, 899). Unlike the situation in McCulla, the board found here that claimant’s *340mental condition was a reasonable explanation for the delay in filing the medical reports.
The board’s finding that the Referee’s action indicated that further action was contemplated and that the cases were not actually closed, being supported by substantial evidence, should not be disturbed.
Reynolds, Greenblott and Simons, JJ., concur with Herlihy, P. J.; Cooke, J., dissents and votes to affirm in an opinion.
Decision reversed, and matter remitted for further proceedings not inconsistent herewith, with one bill of costs against respondents 'Special Fund and Workmen’s Compensation Board.