Claim of Phillip v. C & M Auto Spring Co.

9 A.D.2d 571, 189 N.Y.S.2d 243, 1959 N.Y. App. Div. LEXIS 7425

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 13, 1959
• Status: Published

Opinion

Appeal by the claimant from a decision of the Workmen’s Compensation Board. On May 9, 1952 the claimant injured his back while inserting a spring in a truck in the course of his work for the respondent employer. He did not work again until August 12, 1952 when he began work at a job in South Carolina. A hearing was held on October 24, 1952 at which time the Referee made an award for total disability from May 9 to August 12 and for reduced earnings from August 12 to the date of the hearing and closed the case without prejudice. The claimant thereafter was treated by various doctors in South and North Carolina and finally in Virginia in 1955 by a Dr. Kinser. Dr. Kinser reported that on the basis of the history given him the claimant’s condition was due to the 1952 accident. On the basis of this report the case was reopened and a hearing held in Virginia. Thereafter the Referee found a continuing causally related disability and made an award for reduced earnings. The board rescinded this award and made a finding of no further causally related disability. The only medical testimony in the record is that of Dr. Kinser. 'While his report, on which the reopening was based, indicated causal relationship, he testified at the hearing that he could not see how the injury described to him could have caused the condition which the claimant had three years later and that it was impossible for him to say that there was a causal connection. This testimony and the record as a whole created a question of fact and the board’s determination of no further causally related disability should not be disturbed. Decision unanimously affirmed, without costs. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.