Claim of Mercio v. Globe Protection, Inc.

74 A.D.2d 682, 424 N.Y.S.2d 783, 1980 N.Y. App. Div. LEXIS 10371

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1980
• Status: Published

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed April 3, 1979. Claimant, a part-time security guard, suffered a work-related injury to his right hand and lower back on November 23, 1977. He received full payments of compensation until February 1, 1978, when the payments were reduced to $20 per week, the minimum for temporary partial disability. The controversy on this appeal involves the board’s affirmance of an award of continued reduced earnings after May 31, 1978. In our view, there must be a reversal because of a lack of any proof of continuing disability beyond December 1, 1978. The only medical evidence providing support for the board’s decision was that of the State’s examining physician who conducted an examination of claimant at the hearing on May 31, 1978. His testimony was at best equivocal and could not be construed as supporting a finding of any disability beyond the December date. Since continuing disability cannot be presumed (Matter of Schneider v Buffalo Crushed Stone Co., 43 AD2d 780), the record lacks substantial evidence to support the award. Decision reversed, with costs to the employer and its insurance carrier against the Workers’ Compensation Board, and matter remitted for further proceedings not inconsistent herewith. Sweeney, J. P., Kane, Staley, Jr., Main and Herlihy, JJ., concur.