Claim of De Croix v. N. Sumergrade & Sons

20 A.D.2d 735, 246 N.Y.S.2d 852, 1964 N.Y. App. Div. LEXIS 4379

Opinion

The board awarded to claimant the cost of transportation to and from work by means of his own automobile, as “ necessary for the claimant’s physical support”, upon medical testimony that following healed leg fractures claimant was left with limitation of motion at the ankle, traumatic arthritis of the ankle and an ankle ulcer, and that claimant’s previous mode of transportation by subway was precarious in that the stairs and crowds subjected him to risk of irreparable injury. In Matter of Carniato v. Foster Wheeler Corp. (7 A D 2d 328), this court, per Bergan, J., flatly held (p. 329): “Provision for use of an automobile to go to work does not come within the scope of section 13 of the Workmen’s Compensation Law requiring payments for ‘ medicine, crutches and apparatus * * * or other devices * * * necessary * * * to replace, support or relieve a portion or part of the body’. The enumeration of medical aids expressed in this statutory form would, under ordinary canons of construction, exclude nonmedical instruments such as a motor vehicle.” The factual distinctions which the board would draw between the Carniato ease and this cannot alter the legal principle thus expounded, with the result of constituting a motor vehicle a medical “ apparatus ” or “ device ”, which clearly it is not. Decision reversed and claim dismissed, with costs to appellants against the Workmen’s Compensation Board. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.