Vance v. Ormsby
| Decision Date | 31 July 1958 |
| Citation | 176 N.Y.S.2d 713,6 A.D.2d 960 |
| Parties | Claim of Francis VANCE, Respondent, v. Schuyler ORMSBY and State Insurance Fund, Respondents, and Special Disability Fund under Section 15-8, Appellant. Workmen's Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
John M. Cullen, New York City, for Special Fund, appellant.
Louis J. Lefkowitz, Atty. Gen., for Workmen's Compensation Board.
Charles G. Tierney, New York City, for respondents Ormsby and State Ins. Fund.
Before BERGAN, J. P., and GIBSON, HERLIHY and REYNOLDS, JJ.
Appeal by the Special Disability Fund under Section 15, Subd. 8 of the Workmen's Compensation Law from a decision of the Workmen's Compensation Board which established the liability of such Fund for claimant's disability from May 8, 1954, the date of the third of three accidents.
On June 8, 1953, claimant fractured his right collar bone for which he was ultimately awarded a schedule loss of 7 1/2% of his right arm. On March 1, 1954 he strained muscles in his right shoulder and lower back, and on May 8, 1954 he strained some muscles in his lower back. The award appealed from by the Special Disability Fund held it liable to reimburse the carrier, the State Insurance Fund, for payments beyond the statutory period of 104 weeks for a permanent partial disability which claimant was found to have sustained as a result of the second and third accidents, against which liability has been apportioned equally.
The award charges the Special Disability Fund with the liability for the effects of the last two injuries.
There is, in our view, no substantial evidence to support the finding that the employer continued claimant in his employ from the time of his return to work in October, 1953 to the time of the second accident in March, 1954, with knowledge of a prior permanent physical impairment arising out of the fracture of the clavicle. It is true that the employer testified, with reference to this five-month period, that claimant was never able to do any heavy lifting; but neither from this nor from the other testimony of the employer could the board properly infer knowledge or 'an informed judgment' as to permanence. See Weinberger v. A. Zeibert & Sons, Inc., 2 A.D.2d 908, 156 N.Y.S.2d 770. Ordinarily, a layman would not consider a fractured collarbone as giving rise to a permanent disability. That result was not, at the time, contemplated by the physicians, one reporting no permanence in August, 1953 and other reporting no disability in October, 1953 and later testifying that permanence could not be determined in less than a year. Thus the board has credited the employer with prescience which the medical experts did...
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