Claim of Spinks v. American Manufacturing Co.

243 A.D. 828 | N.Y. App. Div. | 1935

Appeal by the employer from awards for permanent partial disability in favor of claimant. Claimant was injured by being struck by a falling plank in 1921, resulting in traumatic neurasthenia and osteoarthritis of the spine. Various awards were made until 1922, when a compromise lúmp sum award' was granted and the case closed. Thereafter, until 1932, claimant’s condition became progressively worse and he did no work. In 1932 the case was reopened and as a result an award has been made for seventy-five per cent permanent partial disability until June 1, 1932, such award being authorized by subdivision 5-a of section 15 of the Workmen’s Compensation Law. Medical testimony was introduced definitely firing claimant’s disability as fifty per cent permanent partial from and after June 1, 1932, and the Board has made an award upon this basis from and after said date. An application has been made by the appellant for a review by the Board. The appellant claims that there is not sufficient evidence to support an award for partial disability during the period between February 2, 1923, and June 1, 1932; that the evidence does not support the finding of the Board that the claimant had a seventy-five per cent permanent partial disability, and that in reclassifying the disability the Board did not follow the requirements of subdivision 6-a of section 15 of the Workmen’s Compensation Law, which requires that where a reclassification is made after a lapse of seven years from the date of the accident, a review thereof must be by the entire Board and no award shall be made except by the affirmative vote of at least three members thereof. Award reversed and matter remitted, with costs against the State Industrial Board, upon the ground that the review was not had before the entire Board and the determination was not concurred in by three members thereof. Hill, P. J., Rhodes, McNamee, Crapser and Heffeman, JJ., concur.