Claim of Perry v. Ithaca Delivery & Storage

4 A.D.2d 919, 166 N.Y.S.2d 931, 1957 N.Y. App. Div. LEXIS 4322

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1957
• Status: Published

Opinion

Appeal by an employer and its insurance carrier from an award of compensation for disability in favor of the claimant. The board found a 40% schedule loss of the use of the right leg and denied appellant’s request for an examination by an impartial specialist. This appeal has been taken on the ground that no substantial evidence supported the finding of 40% loss of use, and from the denial by the board of appellant’s application to have the matter referred to an impartial specialist. There is no question of accident or notice. Claimant injured his right knee and suffered prepatellar bursitis. A physician called for the claimant found that he had a 25% loss of use of his right leg. Appellants asked that the case be referred to the chief medical examiner of the board and this request was granted. The chief medical examiner found claimant to have a 40% loss of use of the leg in question. When the case was appealed to the board appellants asked to have the matter submitted to an impartial specialist, although no such request had been made to the referee. Thus it may be seen that only an issue of fact is involved because unquestionably the board had the right to accept the opinion of the chief medical examiner although there was testimony to the contrary given by a physician for the appellants. The board’s refusal to refer the matter to an impartial specialist involved only the exercise of discretion. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.