Claim of Kurt Tschaepe v. Albee Godfret-Whale Creek Co.

264 A.D. 961, 37 N.Y.S.2d 171, 1942 N.Y. App. Div. LEXIS 5549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 1942
• Status: Published

Opinion

Appeal by claimant from a decision of the State Industrial Board which denied a claim for additional disability compensation. The Industrial Board Member in his memorandum of decision stated that the entire record in cases referable to other accidents sustained by claimant had been considered and that based thereon and on the weight of medical evidence, the record sustained the determination of the Referee. Questions of fact were presented and there is ample evidence to support the State Industrial Board’s finding. In the circumstances the decision of the State Industrial Board denying additional compensation to the claimant for additional disability should be affirmed. Decision affirmed, without costs. Crapser, Heffernan, Schenek and Foster, JJ., concur; Hill, P. J., dissents on the ground that there is no medical evidence on behalf of the carrier. The statement made by Dr. Kahn was without probative force in view of the testimony given by claimant’s witnesses. The presumption is abrogated when the affidavit is controverted by common-law proof. (Matter of Magna v. Hegeman Harris Co., 258 N. Y. 82).