7 A.D.2d 683 | N.Y. App. Div. | 1958
This is an appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board. The claimant has been employed for over 13 years as a custodian in one of the public schools operated hy the employer. On February 19, 1954 he notified the head custodian, Herbert Smith, that he had suffered an accident in March of 1953 while working and that as a result he had injured his left elbow and had suffered a hernia. The claimant stated that the accident had occurred when he slipped on a frosty step while carrying a garbage can down a fire escape and that his left elbow had hit the stair railing. He then notified the supervising principal, Mr. Fox, who reported, the injury to the Workmen’s Compensation Board on February 24, 1954. In this report it was stated that no medical care was provided, that they had no knowledge of the injury and that they would not verify it because of lack of proof. The claimant went to a Dr. Axtell on March 22, 1954, who examined his arm and sent him to Dr. Kane, a neurosurgeon. The history of the accident given to these doctors was that there had been a numbness of his fingers for about a half-hour after the accident and the fingers were sore for a day or so. Three weeks later claimant was awakened in the night by a drawing sensation in his hand and it felt numb. In the Fall of 1953 he noticed some atrophy of the hand and a little numbness. This numbness persisted and the claimant finally went to Dr. Axtell in March of 1954, one year after the accident. Throughout this time the claimant continued to perform his duties as custodian. Dr. Kane recommended an ulnar nerve transplant and he performed the operation on July 22, 1954. The claimant had a pre-existing condition in his left elbow which resulted from a fracture sustained when he was a child. This restricted complete extension and contributed in some measure to the claimant’s present condition. The claimant previously had a compensable injury in 1951 when he developed a hernia. At that time a notice had been sent to all employees instructing them to report accidents immediately. An award was made to the claimant for a schedule loss of 75% of the left hand. The claim resulting from the alleged hernia was disallowed for lack of medical proof. The claimant’s failure to give notice was excused on the grounds that the claimant was not aware of the seriousness of his injury and that the employer has not been prejudiced by the failure. The appellants