
    In the Matter of the Claim of Elmer H. Kline, Respondent, against American Locomotive Company, Appellant. Workmen’s Compensation Board, Respondent.
   Appeal by a self-insured employer from decisions of the Workmen’s Compensation Board, one of which affirmed a referee’s decision dismissing appellant’s claim for reimbursement under the “second injury law” (Workmen’s Compensation Law, § 15, subd. 8) as untimely filed and discharging the Special Fund; and another which affirmed its said decision after appellant had appealed therefrom. Claimant sustained compensable injuries in appellant’s employ on August 8, 1945, for which, on April 16, 1947, he received a schedule award for a permanent percentage loss of the use of his legs. Thereafter the case was closed upon said award after it had been reopened and restored to the referee’s calendar upon claimant’s application which alleged that his injuries caused further disability due to an aggravation of a preexisting cardiac affliction. On a review of that decision the board, on November 30, 1948, reversed it, found that claimant’s said heart condition was aggravated as a result of the accident, that claimant was temporarily totally disabled and the case was restored to the referee’s calendar for evidence upon the issue of permanency and a decision on the completed record.” On December 27, 1948, and before the next hearing appellant-employer, on Form C-250, filed its duly executed claim or request for reimbursement under subdivision 8 of section 15 of the statute. At the next hearing in the matter, on January 13, 1949, the Special Fund was put on notice and at the next one, on June 17, 1949, the referee dismissed appellant’s claim for reimbursement as not timely filed and discharged the Special Fund and this appeal is from the board’s decisions which affirmed the dismissal. It was not until claimant had succeeded in having his case reopened that any issue arose under the second injury law”. It was during the pendency of the reopened ease that appellant filed its claim for reimbursement, and, of course, before any final determination had been made therein. The statute (Workmen’s Compensation Law, § 15, subd. 8 par. [f]) provided that in the event of the reopening of a ease theretofore closed ” the claim for reimbursement shall be filed, “ no later than the determination of permanency upon such reopening.” The contention that the earlier referee’s decision and the schedule award thereon, before the reopening, barred the filing of appellant’s claim cannot be upheld. To do so would nullify the statutory provision last above cited and partially quoted. Appellant was not bound to file its claim before the schedule award was made, since no issue had then been developed wherein any such claim was relevant. The references to claimant’s pre-existing cardiac condition in the medical reports made prior to the award did not present such an issue. There was no evidence that such had caused or contributed to a permanent disability greater than that which resulted from the subsequent injury alone. It is clear from the phraseology of the statute and its general aim and purpose that the limitation of 104 weeks from the date of disability or death, within which the claim to reimbursement is to be filed, does not apply to a case which has been reopened upon premises which for the first time may give rise to the application of the relief afforded by the “ second injury law ”. The reversed decision which closed the case on the original award after the initial reopening did not result in or amount to a “ determination of permanency upon such reopening ” and no final determination of a permanent resulting disability ” under subdivision 8 of section 15 was made before appellant filed its claim and request. When filed after the reopening of the ease and before any determination therein, it was timely. Decisions reversed on the law, with costs to appellant against the Workmen’s Compensation Board. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.  