Fause v. P. M. C. Carting Corp.
| Decision Date | 27 October 1971 |
| Citation | 325 N.Y.S.2d 272,37 A.D.2d 891 |
| Parties | In the Matter of the Claim of Isaac FAUSE, Respondent, v. P.M.C. CARTING CORPORATION et al., Appellants, and Special Disability Fund, Respondent. Workmen's Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Pasternack, Ciaccio & Burton, New York City, for respondent.
Milton Peckman, New York City (Louis Busell, New York City, of counsel), for appellants.
George Cholet, New York City (James P. Lynch, New York City, of counsel), for respondent Special Fund.
Louis J. Lefkowitz, Atty. Gen., for respondent Workmen's Compensation Board.
Before HERLIHY, P.J., and REYNOLDS, GREENBLOTT, SWEENEY and SIMONS, JJ.
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed December 24, 1970, which discharged the Special Disability Fund (Workmen's Compensation Law, § 15, subd. 8) upon the ground that the claimant's pre-existing disability from diabetes did not materially contribute to the total disability of the claimant resulting from accidental injuries incurred on August 11, 1966.
The issue of whether or not a pre-existing condition when added to the disability resulting from a subsequent accident results in a permanent disability materially and substantially greater than would have resulted from the subsequent injury alone is one of fact for the board (Matter of Myers v. Doehler-Jarvis Div. Nat. Lead Co., 29 A.D.2d 597, 285 N.Y.S.2d 823). While it is undeniable that the pre-existing condition of diabetes is of concern in the claimant's present condition of total disability, the record contains substantial medical evidence to support the board's finding that the accidental injuries were of such severity as to have produced total disability in and of themselves. The resolution of the conflicting medical evidence was for the board (Matter of Latto v. Weber-Bunke-Lange, Inc., 35 A.D.2d 1038, 316 N.Y.S.2d 502).
Decision affirmed, with costs to respondent Special Disability Fund.
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... ... (8), par. (d)). While this is a question of fact for the board (Matter of Fause v. P.M.C. Carting Corp., 37 A.D.2d 891, 325 N.Y.S.2d 272, mot. for lv. to app. den. 30 N.Y.2d 482, 330 N.Y.S.2d 1027, 281 N.E.2d 851), there is a ... ...
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