Claim of Barre v. Roofing & Flooring, Inc.

83 A.D.2d 681, 442 N.Y.S.2d 246, 1981 N.Y. App. Div. LEXIS 14990

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed May 23, 1980. On July 20, 1966, while in the course of his employment as a roofer with Roofing & Flooring, Inc., the employer herein, claimant suffered a compensable accident. In March, 1976, claimant and the carrier agreed to seek a lump-sum settlement of his claim, pursuant to subdivision 5-b of section 15 of the Workers’ Compensation Law. To efféctuate the agreement and induce board approval thereof, claimant undertook to work as an independent contractor, but on May 4,1976 he was again severely injured when he fell from a ladder. The employee’s claim that his medical condition resulting from the accident of July, 1966 caused or contributed to the later accident was disallowed by a referee. In a decision reversing the referee the board found that: “based upon the testimony of Dr. Flood, claimant sustained a consequential injury on May 4, 1976, causally related to the July 20, 1966 compensable accident.” Whether claimant’s accident and injuries consequentially arose from his earlier injury is a question of fact. As claimant was completely amnestic regarding the second accident, Dr. Flood’s testimony that he experienced dizzy spells as a consequence of his original compensable injuries, and his opinion that the fall of May 4, 1976 could have been precipitated by dizziness or loss of balance stemming from the injuries he had suffered on July 20, 1966 constituted evidence sufficient to sustain thé board’s finding (see Matter of Carter v C & L Rest. & Grill, 19 AD2d 676). Decision affirmed, with costs to the Workers’ Compensation Board. Sweeney, J.P., Kane, Mikoll and Yesawich, Jr., JJ., concur.