The opinion
Fuld, J.
(dissenting). Section 25-a of the Workmen’s Compensation Law provides, in part, that, when “
an application for compensation
” is made by an employee seven years after the injury and three years after the last payment of compensation, “an award”, if any, “shall be against the special fund ”. All agree that the section was designed to immunize the-employer and the carrier from old and stale claims and to shift the burden of such charges to the Special Fund for Reopened Cases. 1 do not believe that it was any part of that purpose to relieve the employer of the burden of periodically replacing worn out prosthetic devices or appliances necessitated by a compensable injury.
The decisions leave’ no doubt that the only claims which are truly “ stale ” and deserving of being shifted from employer
*387
to special fund by the lapse of time are those which the employer could not have expected to recur after the passage of seven years from the date of injury and three years from the last payment of compensation. (See, e.g.,
Matter of Ryan
v.
American Bridge Co.,
243 App. Div. 496, 498 , aifd. 268 N. Y. 502 .) In the
Ryan
case
{supra),
the court correctly stated that “ The statute in question [§ 25-a] deals only with
‘
stale ’ claims of injured employees, that is, those where after extended periods, there, has been a recurrence of malady, a progress in disease not anticipated, or a pathological development not previously prognosticated, arising out of the injury. ’ ’ ( 243 App. Div., at p. 498 .) Applications for the replacement or repair of orthopedic shoes are obviously not unforeseeable. On the contrary, in a case of total disablement of a leg, the need for their replacement or repair is not only foreseeable but inevitable, and, in view of the design of section 25-a, such matters are not the responsibility of the special fund.
Moreover, what reason and the design of section 25-a so strongly suggest, the statute elsewhere confirms. By section 13 of the Workmen’s Compensation Law, the employer’s obligation to repair or replace prosthetic devices, no matter how long a .time may intervene between the award and the repair or replacement of such articles, is unalterably and unequivocally fixed. That section, in so many words, renders the employer liable to furnish, “ for such period as the nature of the injury * * * may require ”, not only “ artificial members of the body or other devices or appliances necessary in the first instance to replace, support or relieve a portion or part of the body resulting from and necessitated by the injury of an employee ”, but also
“
replacements or repairs of such artificial members of the body or such other devices or appliances necessitated by ordinary wear.” And, most significantly, the statute continues,
“
such a replacement or repair * * * shall not constitute the payment of compensation under section twentv-five-a ”.
That, it seems to me, ends the matter, for, since section 25-a applies only to a long-delayed
“ application for compensation ”
and since the replacement or repair of devices such as orthopedic shoes is — by legislative definition —
not “ compensation
”, it
*388
necessarily follows that section 25-a may not here be properly invoked by employer or carrier to shift liability to the special fund.
That being so, it is unnecessary to consider whether the board’s action in placing this claim in “ abeyance ” in its
“
pending file ” effectively
“
closed ” the case for present purposes.
I would affirm the determination of the Appellate Division.
Loughran, Oh. J., Conway and Dye, JJ., concur with Bromley, J.; Fuld, J., dissents in opinion in which Lewis and Desmond, JJ., concur.
Order reversed, etc.