Claim of Gelband v. Queen Mary Bag & Luggage Shops

Appellate Division of the Supreme Court of New York

Claim of Gelband v. Queen Mary Bag & Luggage Shops

11 A.D.2d 571, 200 N.Y.S.2d 768, 1960 N.Y. App. Div. LEXIS 9919

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 16, 1960

StatusPublished

This text of 11 A.D.2d 571 (Claim of Gelband v. Queen Mary Bag & Luggage Shops) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Gelband v. Queen Mary Bag & Luggage Shops, 11 A.D.2d 571, 200 N.Y.S.2d 768, 1960 N.Y. App. Div. LEXIS 9919 (N.Y. Ct. App. 1960).

Pincite

Opinion

Appeal from a decision and award of the Workmen’s Compensation Board. Claimant worked in a luggage store and this required movement of heavy merchandise, including luggage, trunks and bundles of umbrellas. In 1955 claimant noticed a pain in his groin, and Ms physician diagnosed this as due to a small hernia. Claimant continued to work. In January, 1957 he felt sharp pains and cramps while carrying a bundle of 70 or 80 pounds. On examination it was found he had a large scrotal hernia which was corrected by surgery on March 4, 1957. The Referee found that claimant did not suffer an accident in January, 1957; and that the claim was filed too late in March, 1957 for an occupational disease, manifested in 1955. The board on a sufficient medical record found an occupational disease; but the date of disablement was fixed as March 4, 1957, the date of the surgical operation. Since the claimant’s ability to earn full wages is the test of disablement for occupational disease; and since claimant did earn full wages until the date of his operation, the board’s decision is right. (Workmen’s Compensation Law, § 42; Matter of Nichols v. Colonial Beacon Oil Go., 284 App. Div. 581; Matter of Muniah v. ACF Industries, 7 A D 2d 258.) Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

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Appeal from a decision and award of the Workmen’s Compensation Board. Claimant worked in a luggage store and this required movement of heavy merchandise, including luggage, trunks and bundles of umbrellas. In 1955 claimant noticed a pain in his groin, and Ms physician diagnosed this as due to a small hernia. Claimant continued to work. In January, 1957 he felt sharp pains and cramps while carrying a bundle of 70 or 80 pounds. On examination it was found he had a large scrotal hernia which was corrected by surgery on March 4, 1957. The Referee found that claimant did not suffer an accident in January, 1957; and that the claim was filed too late in March, 1957 for an occupational disease, manifested in 1955. The board on a sufficient medical record found an occupational disease; but the date of disablement was fixed as March 4, 1957, the date of the surgical operation. Since the claimant’s ability to earn full wages is the test of disablement for occupational disease; and since claimant did earn full wages until the date of his operation, the board’s decision is right. (Workmen’s Compensation Law, § 42; Matter of Nichols v. Colonial Beacon Oil Go., 284 App. Div. 581; Matter of Muniah v. ACF Industries, 7 A D 2d 258.) Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

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Bluebook (online)

11 A.D.2d 571, 200 N.Y.S.2d 768, 1960 N.Y. App. Div. LEXIS 9919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-gelband-v-queen-mary-bag-luggage-shops-nyappdiv-1960.

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