Kahan v. Unterman Pharmacy, Inc.

Appellate Division of the Supreme Court of New York

Kahan v. Unterman Pharmacy, Inc.

44 A.D.2d 859, 355 N.Y.S.2d 191, 1974 N.Y. App. Div. LEXIS 5130

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

DecidedMay 2, 1974

StatusPublished

This text of 44 A.D.2d 859 (Kahan v. Unterman Pharmacy, Inc.) 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

Kahan v. Unterman Pharmacy, Inc., 44 A.D.2d 859, 355 N.Y.S.2d 191, 1974 N.Y. App. Div. LEXIS 5130 (N.Y. Ct. App. 1974).

Pincite

Opinion

Appeal by the employer and carrier from a decision of the Workmen’s Compensation Board, filed April 10, 1973. On August 17, 1970 claimant, aged 77, sustained a recurrent right inguinal hernia as a result of a lifting experience. Claimant’s attending physician referred him to an internist who concluded claimant was not a “good operative risk” due to a cardiac condition. The board found permanent total disability due to the accidental injury. In view of this finding, it determined that liability against the Special Fund under section 15 (subd. 8) of the Workmen’s Compensation Law had not been established. It is appellant’s contention that the board based its finding of total disability on a combination of the injuries sustained in the accident, together with a pre-existing heart condition, and, therefore, its conclusion that subdivision 8 of section 15 does not apply is erroneous as a matter of law. We do not agree. The plain language of the board’s finding is that the total disability was due to the accidental injury. The record reveals that his attending physician testified that claimant was permanently and totally disabled because he was unable to operate on the hernia. Taking the record in its entirety there is substantial evidence to sustain the [860]*860board’s determination, and we should not disturb it. Decision affirmed, with costs to the Special Disability Fund. Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Main, JJ., concur.

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Appeal by the employer and carrier from a decision of the Workmen’s Compensation Board, filed April 10, 1973. On August 17, 1970 claimant, aged 77, sustained a recurrent right inguinal hernia as a result of a lifting experience. Claimant’s attending physician referred him to an internist who concluded claimant was not a “good operative risk” due to a cardiac condition. The board found permanent total disability due to the accidental injury. In view of this finding, it determined that liability against the Special Fund under section 15 (subd. 8) of the Workmen’s Compensation Law had not been established. It is appellant’s contention that the board based its finding of total disability on a combination of the injuries sustained in the accident, together with a pre-existing heart condition, and, therefore, its conclusion that subdivision 8 of section 15 does not apply is erroneous as a matter of law. We do not agree. The plain language of the board’s finding is that the total disability was due to the accidental injury. The record reveals that his attending physician testified that claimant was permanently and totally disabled because he was unable to operate on the hernia. Taking the record in its entirety there is substantial evidence to sustain the [860]*860board’s determination, and we should not disturb it. Decision affirmed, with costs to the Special Disability Fund. Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Main, JJ., concur.

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Bluebook (online)

44 A.D.2d 859, 355 N.Y.S.2d 191, 1974 N.Y. App. Div. LEXIS 5130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kahan-v-unterman-pharmacy-inc-nyappdiv-1974.