Claim of Bigger v. Great Atlantic & Pacific Tea Co.

24 A.D.2d 662, 261 N.Y.S.2d 189, 1965 N.Y. App. Div. LEXIS 3651

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1965
• Status: Published

Opinion

Gibson, P. J.

The board’s finding of total disability following a back injury and subsequent laminectomy and spine fusion is contested by appellants on the ground that there is no substantial evidence of any disability beyond October 10, 1963 that .is more than partial. Claimant has never returned to work. No medical testimony has been taken and the record consists of medical reports. The attending physician’s report of February 26, 1964 is incomplete and not helpful. The carrier’s consultant, on October 10, 1993, reported partial disability, mentioned claimant’s subjective complaints, and considered that the maximum benefits of rehabilitation procedures had been obtained and that the “problem * * * is mostly on a neuropsyehiatric basis”. In earlier medical reports, also, appear indications that some part of claimant’s difficulty is phychologieal and that there exists “ a huge overlay of psychogenic origin ”. There is no claim that she is a malingerer; but there is no proof relating any neuropsychiatric condition to the accident and, on the other hand, no proof denying such causality. Thus there is no substantial evidence of continued total disability. Upon the remittal which therefore becomes necessary the various medical problems can be more fully explored. Decision reversed, with costs to appellants against the Workmen’s Compensation Board, and case remitted for further proceedings. Herlihy, Reynolds, Taylor and Hamm, JJ., concur.