Claim of Perry v. J & S Distributors, Inc.

24 A.D.2d 662, 261 N.Y.S.2d 179, 1965 N.Y. App. Div. LEXIS 3650

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1965
• Status: Published

Opinion

Herlihy, J.

Appeal from a decision of the Workmen’s Compensation Board which determined that the claimant sustained an accident on August 28, 1961. In the state of this confused, misleading and contradictory record, we take note of the statement in the Attorney-General’s brief: “However, the Attorney General would be less than candid with this Court if he did not admit that there is evidence that the claimant’s accident might have occurred on August 8, 1961 and that the claimant mistakenly fixed the date as August 28, 1961.” The substantial evidence in the record shows that if there was an industrial accident, which the record tends to establish, it happened on August 8, 1961 and not on the date as found by the board. The date is important to the extent that it bears on causal relationship, whether to an industrial accident in August or to an incident, apparently not work-connected, said to have occurred three months later. We would also note that the uncontradieted medical statement of Dr. Lo Verme constituted substantial evidence. (See Workmen’s Compensation Law, § 21, subd. 5.) Decision reversed, and case remitted for further proceedings, with costs to appellants against the Workmen’s Compensation Board. Gibson, P. J., Reynolds, Taylor and Hamm, JJ., concur.