SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 29, 1969
IN THE MATTER OF THE CLAIM OF CHRIST VOGTS, RESPONDENT,
BAY SHORE SUNRISE BOWL ET AL., RESPONDENTS, AND SPECIAL DISABILITY FUND, APPELLANT. WORKMEN'S COMPENSATION BOARD, RESPONDENT
Herlihy, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Herlihy, J.
Appeal by the Special Disability Fund from a decision of the Workmen's Compensation Board, dated August 24, 1967, which denied its application for a review of the compensation rate of claimant. In its application to the board for review of this reduced earnings rate, the appellant did not purport to be requesting review of any particular Referee's decision and indeed, the last decision referring to a rate had been rendered by a Referee on April 18, 1966 and was affirmed by the board on October 21, 1966. It is, therefore, apparent that as to these awards made prior to October 21, 1966 and to subsequent payments made pursuant to that order, the appellant had no right to a review of the rate by way of an appeal. (See Workmen's Compensation Law, § 23.) The board found: "As to raising extent of disability, the reduced earnings rate has long since been established and claimant classified and no objection was made by either the carrier or the Special Funds Conservation Committee. It is not contemplated that compensation cases should be tried piece-meal or prolonged unreasonably." The finding by the board is technically correct as to an application to review prior board decisions and our affirmance is mandated. However, we note that if a rate established is factually and/or legally erroneous, the board has continuing jurisdiction and on its own motion or on a proper application by an interested party, an erroneous rate may be corrected. (See Workmen's Compensation Law, §§ 123, 22, 15, subd. 6, par. [a].) We do not consider or pass upon the merits as to the correctness of the reduced earnings rate.
Decision affirmed, without costs.
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