Claim of Thomas v. Royal Dairy

Appellate Division of the Supreme Court of New York

Claim of Thomas v. Royal Dairy

270 A.D. 688, 63 N.Y.S.2d 276, 1946 N.Y. App. Div. LEXIS 3769

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 1946

StatusPublished

Cited by1 cases

This text of 270 A.D. 688 (Claim of Thomas v. Royal Dairy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Thomas v. Royal Dairy, 270 A.D. 688, 63 N.Y.S.2d 276, 1946 N.Y. App. Div. LEXIS 3769 (N.Y. Ct. App. 1946).

Pincite

Opinion

Per Curiam.

Appeal by Royal Dairy, employer, and its carrier, from a decision and award of one third of the compensation payable to the claimant-respondent Thomas. He suffered an injury, while employed by the Salvation Army, on December 11, 1933. Two thirds of the compensation was awarded on account of that injury and it is made payable from the Fund for Reopened Cases under section 25-a of the Workmeil’s Compensation Law. He suffered further injury on October 24, 1943, while in the employ of the appellant.

The evidence indicates that there had been numerous and frequent dislocations of the shoulder originally injured in 1933. It is permissible for the board to apportion compensation in accordance with the causation between two employers. (Matter of Chiodo v. Newhall Co., 254 N. Y. 534; Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146.) The board made a finding in this proceeding, as follows: “ 8. The Fund for Reopened Cases, the Royal Dairy and its insurer, the (American) Lumbermens Mutual Casualty Co. of Illinois, stipulated and agreed that each of them would be bound by the determination of the Workmen’s Compensation Board as to the extent of the liability of each of them. They further consented and agreed that the claimant proceed with the required surgical operation to correct the condition of chronic recurrent dislocation and that each of them would pay the expenses therein to the extent that the Workmen’s Compensation Board would determine as their respective responsibility.”

This finding has no evidence to sustain it. The basis upon which it was made was a simple agreement by all the parties that the claimant be permitted, in advance of the decision of the board, as to liability, to have an operation for which it was agreed there was an emergency, and that it would be paid for by the employer, carrier or fund thereafter determined to be responsible for the injuries.

The award should be reversed and the matter remitted to the Workmen’s Compensation Board for a determination made upon the testimony and not upon the finding above quoted.

[690]*690All concur.

Award reversed, matter remitted for further consideration, with costs against the Workmen’s Compensation Board, payable to appellants. •

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Per Curiam.

Appeal by Royal Dairy, employer, and its carrier, from a decision and award of one third of the compensation payable to the claimant-respondent Thomas. He suffered an injury, while employed by the Salvation Army, on December 11, 1933. Two thirds of the compensation was awarded on account of that injury and it is made payable from the Fund for Reopened Cases under section 25-a of the Workmeil’s Compensation Law. He suffered further injury on October 24, 1943, while in the employ of the appellant.

The evidence indicates that there had been numerous and frequent dislocations of the shoulder originally injured in 1933. It is permissible for the board to apportion compensation in accordance with the causation between two employers. (Matter of Chiodo v. Newhall Co., 254 N. Y. 534; Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146.) The board made a finding in this proceeding, as follows: “ 8. The Fund for Reopened Cases, the Royal Dairy and its insurer, the (American) Lumbermens Mutual Casualty Co. of Illinois, stipulated and agreed that each of them would be bound by the determination of the Workmen’s Compensation Board as to the extent of the liability of each of them. They further consented and agreed that the claimant proceed with the required surgical operation to correct the condition of chronic recurrent dislocation and that each of them would pay the expenses therein to the extent that the Workmen’s Compensation Board would determine as their respective responsibility.”

This finding has no evidence to sustain it. The basis upon which it was made was a simple agreement by all the parties that the claimant be permitted, in advance of the decision of the board, as to liability, to have an operation for which it was agreed there was an emergency, and that it would be paid for by the employer, carrier or fund thereafter determined to be responsible for the injuries.

The award should be reversed and the matter remitted to the Workmen’s Compensation Board for a determination made upon the testimony and not upon the finding above quoted.

[690]*690All concur.

Award reversed, matter remitted for further consideration, with costs against the Workmen’s Compensation Board, payable to appellants. •

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270 A.D. 688, 63 N.Y.S.2d 276, 1946 N.Y. App. Div. LEXIS 3769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-thomas-v-royal-dairy-nyappdiv-1946.

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