281 A.D. 721 | N.Y. App. Div. | 1952
Appeal by an employer and its insurance carrier from a decision of the Workmen’s Compensation Board that claimant was disabled as the result of an occupational disease. The board fixed the date of disability as of March 3, 1951. Appellants’ chief contention is that the finding of disability as of March 3, 1951, is arbitrary and without substantial evidence to sustain it. Section 42 of the Workmen’s Compensation Law provides that the date of disablement in occupational disease cases is to be fixed by the board. Of course this does not give the board power to fix a date arbitrarily, but if a fair issue of fact is raised the decision of the board is final. Claimant had a long hernia history on his left side, and finally on March 3, 1951, a physician noted a hernia on his right side. While this latter hernia apparently had existed for some time there is no evidence, medical or otherwise, that it had actually disabled him prior to that date. The report of the physician who examined claimant on the 3d of March, 1951, indicated that claimant found it difficult to continue work because of pains in both groins. It also requested authorization for a bilateral operation. There is evidence, therefore, of a substantial nature to sustain the board’s finding of disability as of the date of such report. With that date properly fixed appellants’ claim was filed within the statutory period. Because claimant was actually working at the time his claim was not vitiated (Matter of Yuras v. Union Table & Spring Co., 279 App. Div. 679). Decision affirmed, with costs to the Workmen’s Compensation Board. Foster, P. J., Brewster, Bergan and Halpern, JJ., concur.