Claim of Dziedzic v. Grand Union Co.

48 A.D.2d 991, 369 N.Y.S.2d 564, 1975 N.Y. App. Div. LEXIS 10297

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1975
• Status: Published

Opinion

Appeal from a decision of the Workmen’s Compensation Board, filed August 2, 1974, which sustained, as modified, an award to claimant for facial disfigurement. Claimánt received an award for a facially disfiguring scar in 1969 as the result of injuries sustained in a 1967 accident. He was injured again in 1972 and the disputed portion of the ensuing award concerns the claim of the employer and its carrier that he is being compensated anew for the same scar. Although the medical reports of these incidents are somewhat ambiguous in their description of the various injuries and arguably support differing conclusions on this subject, there is no question but that claimant suffered cranial lacerations in each -accident. Whether his latest injury produced any additional disfigurement is purely a question of fact for the board to resolve. Aware of this conflict, it secured the best available evidence; namely, the physical presence of claimant and his testimony, before deciding the matter. Consequently, we are unable to say that the award rests on something other than substantial evidence (cf. Matter of Hildreth v Ford Motor Co., 14 AD2d 963). Decision affirmed, with costs to the Workmen’s Compensation Board. Sweeney, J. P., Kane, Larkin and Reynolds, JJ., concur; Main, J., dissents and votes to reverse in the following memorandum. Main, J. (dissenting). I dissent. The board’s decision is not supported by substantial evidence. All of the credible evidence clearly indicates that the scar over the right eyebrow was not causally related to the accident of September 18, 1972.