Claim of Barbuto v. B & M Niagara Corp.

Appellate Division of the Supreme Court of New York

Claim of Barbuto v. B & M Niagara Corp.

5 A.D.2d 894, 171 N.Y.S.2d 137, 1958 N.Y. App. Div. LEXIS 6701

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 5, 1958

StatusPublished

This text of 5 A.D.2d 894 (Claim of Barbuto v. B & M Niagara Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Barbuto v. B & M Niagara Corp., 5 A.D.2d 894, 171 N.Y.S.2d 137, 1958 N.Y. App. Div. LEXIS 6701 (N.Y. Ct. App. 1958).

Pincite

Opinion

Appeal by the employer and carrier from an award of the Workmen’s Compensation Board. Claimant’s left index finger has been amputated because of a malignant melanoma. Appellants contend: (1) that thqpe is no evidence to sustain a board finding that on a day in August, 1953, claimant hit his left index finger with a hammer; and, (2) that there is no substantial evidence that a pre-existing melanoma was aggravated by the blow. Claimant was a carpenter, and testified that in driving nails he hit his left index finger with a hammer on several occasions. He mentioned one such incident in the “late summer or early fall” and shortly thereafter noticed that the finger was turning black underneath the finger nail. Because the immediate result was only temporary pain, claimant explains that he made no mental note of the exact date. From this evidence and from the history given to a doctor, the board could draw an inference, supported by evidence, that a particular incident occurred in August. There was substantial medical evidence that either a series of traumas or a single trauma aggravated a preexisting dormant melanoma. One doctor expressed it in this manner: “it changed a pre-malignant lesion into a malignant lesion”, and thus necessitated the amputation. There is ample evidence in the record to present clear questions of fact and to support the board’s determination of such questions. Award affirmed, with costs to the Workmen’s Compensation Board.

Foster, P. J., Bergan, Coon and Gibson, JJ., concur.

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Appeal by the employer and carrier from an award of the Workmen’s Compensation Board. Claimant’s left index finger has been amputated because of a malignant melanoma. Appellants contend: (1) that thqpe is no evidence to sustain a board finding that on a day in August, 1953, claimant hit his left index finger with a hammer; and, (2) that there is no substantial evidence that a pre-existing melanoma was aggravated by the blow. Claimant was a carpenter, and testified that in driving nails he hit his left index finger with a hammer on several occasions. He mentioned one such incident in the “late summer or early fall” and shortly thereafter noticed that the finger was turning black underneath the finger nail. Because the immediate result was only temporary pain, claimant explains that he made no mental note of the exact date. From this evidence and from the history given to a doctor, the board could draw an inference, supported by evidence, that a particular incident occurred in August. There was substantial medical evidence that either a series of traumas or a single trauma aggravated a preexisting dormant melanoma. One doctor expressed it in this manner: “it changed a pre-malignant lesion into a malignant lesion”, and thus necessitated the amputation. There is ample evidence in the record to present clear questions of fact and to support the board’s determination of such questions. Award affirmed, with costs to the Workmen’s Compensation Board.

Foster, P. J., Bergan, Coon and Gibson, JJ., concur.

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Bluebook (online)

5 A.D.2d 894, 171 N.Y.S.2d 137, 1958 N.Y. App. Div. LEXIS 6701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-barbuto-v-b-m-niagara-corp-nyappdiv-1958.