Suber v. Hope's Windows, Inc.

38 A.D.2d 656, 327 N.Y.S.2d 294, 1971 N.Y. App. Div. LEXIS 2611

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1971
• Status: Published

Opinion

Appeal from a decision of the Workmen’s Compensation Board, filed July 1, 1970. The board found that claimant, who operated a metal cutting machine by means of a foot pedal, “ suffered backache while operating the pedal of a metal cutting machine on June 10, 1968, that the backache worsened and that claimant’s condition was diagnosed as herniated disc ”. The board further found “that the said work activities, the backache and the herniated disc constitute an accidental injury within the meaning of the Workmen’s Compensation Law and that disability is the result thereof ”. Respondent’s testimony of suddenly experiencing severe pain, together with other supporting evidence, was sufficient to establish accidental injury within the meaning of the Workmen’s Compensation Law (Matter of Stein v. Schneider, 34 A D 2d 1062). The definite time requirement essential to establish an accidental injury may be satisfied by suddenness of either cause or result (Matter of Stein v. Schneider, supra; Matter of Greensmith v. Franklin Nat. Bank, 21 A D 2d 576, affd. 16 N Y 2d 973). The board’s finding of accidental injury is supported by substantial evidence. Appellants have additionally filed a notice of appeal from a decision of the Referee. That decision is not appealable and should therefore be dismissed. Decision affirmed, with costs to the Workmen’s Compensation Board. Appeal from the Referee’s decision dismissed, without costs. Herlihy, P. J., Staley, Jr., Greenblott, Cooke and Simons, JJ., concur.