Claim of Tarter v. Pullman Co.

274 A.D. 863, 81 N.Y.S.2d 731, 1948 N.Y. App. Div. LEXIS 3717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 22, 1948
• Status: Published

Opinion

Appeal by a self-insured employer from .a decision of the Workmen’s Compensation Board which confirmed a referee’s award of disability compensation to claimant. Claimant sustained a compensable back injury in September, 1945, and was awarded and paid compensation until he returned to work. With the exception of the time he was unable to work due to injuries sustained in a subsequent and unrelated accident (for which he was fully compensated) he continued in his employment without loss of earnings until March 18, 1947, when he left it and has since been unemployed. There is evidence that when he quit employment he was suffering from a residuum of the back injury of September, 1945, and that such was of a partial disabling nature; that he left his employment partly on account thereof and also because of a diseased heart condition which for aught that appears was wholly unrelated to any accidental injury. There was evidence that the residuum of claimant’s back injury partially disabled him. He was awarded compensation under then effective subdivision 6 of section 15 of the Workmen’s Compensation Law at the minimum rate in the absence of evidence of greater reduced earnings. There being evidence of partial disability caused by the accident of September, 1945, the award made was allowable without proof of actual reduced earning capacity. (Matter of Bostello v. Kennedy Constr. Co., 263 App. Div. 1031.) Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — • Hill, P. J., Heffernan, Brewster, Foster and Russell, JJ. [See post, p. 949.]