Claim of Tracey v. Tantalo

Appellate Division of the Supreme Court of New York

Claim of Tracey v. Tantalo

19 A.D.2d 672, 241 N.Y.S.2d 714, 1963 N.Y. App. Div. LEXIS 3475

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

DecidedJune 27, 1963

StatusPublished

This text of 19 A.D.2d 672 (Claim of Tracey v. Tantalo) 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 Tracey v. Tantalo, 19 A.D.2d 672, 241 N.Y.S.2d 714, 1963 N.Y. App. Div. LEXIS 3475 (N.Y. Ct. App. 1963).

Pincite

Opinion

The employer and carrier appeal from -a finding of 50% continuing causally related permanent partial disability and the computation of the claimant’s average weekly wage pursuant to section 14 of the Workmen’s Compensation Laiv. A report by Dr. James A. Elkins, who examined the claimant ¡on behalf of the appellants, advised that the claimant did not have a ruptured disc •— as described by claimant’s doctor • — but that he suffered an ¡aggravation of pre-existing arthritis, which resulted in a 50% permanent partial disability. The doctor was not called to testify and the report is not controverted by any evidence in the record. An impartial specialist also testified that claimant was suffering from arthritis. The record as a whole establishes that at the very least the claimant did aggravate a pre-existing arthritic condition, which is permanent and that he is at least 50% disabled as a result thereof. The board properly applied the provisions of section 14 in computing his average weekly wage as his employment was not seasonal but subject to weather conditions and the claimant did not limit his employment. Decision unanimously affirmed, with costs to the Workmen’s Compensation Board. Present ■ — Bergan, P. J., Coon, Gibson, Herlihy and T-aylor, JJ.

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The employer and carrier appeal from -a finding of 50% continuing causally related permanent partial disability and the computation of the claimant’s average weekly wage pursuant to section 14 of the Workmen’s Compensation Laiv. A report by Dr. James A. Elkins, who examined the claimant ¡on behalf of the appellants, advised that the claimant did not have a ruptured disc •— as described by claimant’s doctor • — but that he suffered an ¡aggravation of pre-existing arthritis, which resulted in a 50% permanent partial disability. The doctor was not called to testify and the report is not controverted by any evidence in the record. An impartial specialist also testified that claimant was suffering from arthritis. The record as a whole establishes that at the very least the claimant did aggravate a pre-existing arthritic condition, which is permanent and that he is at least 50% disabled as a result thereof. The board properly applied the provisions of section 14 in computing his average weekly wage as his employment was not seasonal but subject to weather conditions and the claimant did not limit his employment. Decision unanimously affirmed, with costs to the Workmen’s Compensation Board. Present ■ — Bergan, P. J., Coon, Gibson, Herlihy and T-aylor, JJ.

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Bluebook (online)

19 A.D.2d 672, 241 N.Y.S.2d 714, 1963 N.Y. App. Div. LEXIS 3475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-tracey-v-tantalo-nyappdiv-1963.