Claim of Miller v. Lisk Manufacturing Co. 263 A.D. 772

Claimant appeals from a decision of the Industrial Board, as follows: “ The record at this time will not support a finding of permanent partial disability and the medical testimony indicates the existence of only a small earning capacity. Under the circumstances the Industrial Board is of the opinion that the recommendation of Dr. Jaenike as to disposition of this case on a lump sum settlement should merit serious consideration of the parties, and the Board so recommends. For this purpose, the case is restored to the referee’s calendar, and the decision made by the referee on April 20, 1939, for the reasons above stated is rescinded in the interest of justice.” A decision by a referee, dated August 4, 1938, made an award upon the ground “ from medical evidence I find condition of claimant permanent.” The reference in the decision by the Board to a referee’s decision made on “April 20, 1939,” apparently refers to a decision dated one day later as printed in the record, which reaffirmed the quoted decision of August 4, 1938. The Industrial Board has by its decision rescinded an award and a determination that claimant’s condition *773is permanent but this rescission is only for the purpose of having the parties attempt to negotiate a lump sum settlement. The Board is without power to make such a decision. Decision reversed and matter remitted, with costs against the State Industrial Board. Hill, P. J., Crapser, Heffernan, Sehenck and Foster, JJ., concur.