Claim of Earl v. Davis Box Toe Co.

261 A.D. 862, 24 N.Y.S.2d 825, 1941 N.Y. App. Div. LEXIS 7803

Opinion

Appeal by the employer and the State Insurance Fund from an award made by the State Industrial Board to claimant for a fifty per cent loss of use of the left thumb, covering the period from December 28, 1937, to September 16, 1938. Claimant was employed as a cutter. On July 26, 1922, he sustained injuries to the four fingers of his left hand, for which an award was made based upon a ninety per cent permanent loss of use of such hand. On December 28, 1937, while engaged in the same occupation for another employer, the distal two-thirds of the terminal phalanx of the left thumb was amputated, and an injury sustained to the phalangeal joint. For such injuries the award of fifty per cent loss of use of the thumb was made. There is proof in the record that the injuries sustained in the first accident did not affect the left thumb, and that, until the second accident occurred, claimant used this thumb .in the performance of his work at a cutting machine. After the second accident he was no longer able to operate the machine by reason of the injuries to the thumb. We think these facts sufficient to sustain the award, and to bring the ease within the exception noted in Matter of Flicker v. Mac Sign Company (252 N. Y. 492). Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Crapser, Bliss, Heffeman and Foster, JJ.