Somers v. Texaco, Inc.

Jun 13, 1991
Versions:174 A.D.2d 842
571 N.Y.S.2d 143
1991 N.Y. App. Div. LEXIS 8323

—Appeals from two decisions of the Workers’ Compensation Board, filed July 18, 1989 and March 23, 1990, which, inter alia, ruled that claimant sustained a permanent partial disability.

*843Whether a claimant’s disability is schedulable is a question of fact within the exclusive province of the Workers’ Compensation Board to resolve and its determination of the issue must be upheld if supported by substantial evidence (Matter of Donahue v Thomas H. Bradley, Inc., 90 AD2d 611). The record in this case contains substantial evidence to sustain the finding that claimant had a permanent partial disability and that his condition was not amenable to a schedule loss evaluation. The medical evidence showed that claimant had continuing pain in his right shoulder, that it interfered with his ability to perform his regular work and two physicians opined that the condition was probably permanent. Although there was medical evidence which could have supported a contrary conclusion, this conflicting proof was properly resolved as a factual determination by the Board (see, Matter of Andrews v T & G Floor & Wall Covering, 122 AD2d 355). The employer’s remaining contentions on appeal have been considered and deemed to be lacking in merit.

Mahoney, P. J., Casey, Weiss, Mikoll and Harvey, JJ., concur. Ordered that the decisions are affirmed, with costs.