Claim of Magen v. Great Atlantic & Pacific Tea Co.

281 A.D. 931

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1953
• Status: Published

Opinion

Appeal by an employer and its insurance carrier from an award of compensation for disability. A prior lump sum settlement which had been paid to claimant was rescinded and the carrier credited with this amount. While lifting a ease of fruit claimant suffered an acute pain in the lower back region. It was thought by the physicians called to diagnose his case that he had a herniated disc and operative treatment was recommended. With the consent of the carrier an operation was performed but failed to reveal a protruding disc. It did, however, reveal a benign tumor known as a chondroma. Concededly this was unrelated to the alleged accident and the board so found. Various awards of compensation were made and finally a lump sum settlement was arrived at which the claimant accepted and the carrier paid. The carrier seeks no relief with regard to the lump sum settlement already paid. The case was closed on April 19, 1944. On April 12, 1949, the ease -was reopened upon the report of a physician who found claimant suffering from an acute urinal retention due to the operation performed some years previously. This physician found claimant totally disabled and attributed his condition to an infection arising from the operation and probably due to the use of a catheter. The award herein appealed from is based upon a finding that claimant’s urinary difficulty and his disability resulting therefrom are related to the operation. This finding is purely factual and sustained by substantial evidence. Under the circumstances, it was within the power of the board to make an award. Award unanimously affirmed, with costs to the Workmen's Compensation Board. Present--Foster, P. J., Borgan, Coon, Halpern and Imrie, JJ.