Peziol v. VAW of America

• Decision Date: 19 December 1997
• Citation: 667 N.Y.S.2d 70,245 A.D.2d 877
• Parties: , 1997 N.Y. Slip Op. 11,300 In the Matter of the Claim of Adam PEZIOL, Respondent, v. VAW OF AMERICA, Appellant. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 70

667 N.Y.S.2d 70

245 A.D.2d 877, 1997 N.Y. Slip Op. 11,300

In the Matter of the Claim of Adam PEZIOL, Respondent, v. VAW OF AMERICA, Appellant.

Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division,

Third Department.

Dec. 19, 1997.

Ryan, Roach & Ryan P.C. (Sean J. Denvir, of counsel), Kingston, for appellant.

Ralph M. Kirk, Kingston, for Adam Peziol, respondent.

Dennis C. Vacco, Attorney General (Iris A. Steel, of counsel), New York City, for Workers' Compensation Board, respondent.

Before CARDONA, P.J., and MIKOLL, CREW, CASEY and YESAWICH, JJ.

MEMORANDUM DECISION.

Motion for reargument.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted, without costs, unpublished memorandum and order dated and entered September 4, 1997 rescinded and vacated and the following memorandum and order substituted therefor:

Appeal from a decision of the Workers' Compensation Board, filed July 11, 1996, which ruled that claimant sustained a causally related disability as the result of a work-related accident and awarded him workers' compensation benefits.

Claimant was employed as a millhand and had worked under a 20-pound lifting restriction since October 1992 due to a severe arthritic spinal condition. In June 1994, claimant injured his back while lifting aluminum pipes, which rendered him totally disabled. Contrary to the employer's contention, we find that the Board's decision is supported by substantial evidence.

Notwithstanding the limitation of heavy lifting, the record indicates that claimant was able to continue performing his duties as a millhand until injuring his back at work and that he was not under constant medical care for his preexisting back condition. Accordingly, inasmuch as claimant was able to effectively perform his job despite his noncompensable preexisting back condition, apportionment does not apply (see, e.g., Matter of Williams v. Boll, 184 A.D.2d 881, 585 N.Y.S.2d 538; Matter of Di Fabio v. Albany County Dept. of Social Servs., 162 A.D.2d 775, 776-777, 557 N.Y.S.2d 688; Matter of Zanetti v. Orange & Rockland Utils., 132 A.D.2d 761, 762, 517 N.Y.S.2d 323; Matter of Carbonaro v. Chinatown Sea Food, 55 A.D.2d 756, 757, 389 N.Y.S.2d 640; see also, 5 Larson, Workers' Compensation Law § 59.20 et seq.; compare, Matter of Miller v. Congel-Palenscar Inc., 236 A.D.2d 645, 653 N.Y.S.2d 713) and the decision must be affirmed.

ORDERED...