Claim of Scheiber v. I. Simon & Co.

Gibson, P. J. Appeal from a decision in a reopened case which held appellant carrier liable for claimant’s medical expenses during a period of total disability occurring some years after the case was closed upon approval of a nonschedule adjustment; no compensation payments being awarded, apparently because the lump-sum settlement had not then been expended. The board found that “ there was a change in claimant’s condition and in the degree of disability * * * which was not contemplated at the time of the lump sum approval”. (See Workmen’s Compensation Law, § 15, subd. 5-b.) Appellants contend simply that “There is no substantial evidence of a change in condition”. Claimant sustained back injuries in 1954. After receiving compensation for total disability for approximately three months and thereafter for partial disability for over six years (during this latter period claimant being steadily employed at reduced earnings), a lump-sum settlement was approved and the ease closed, on the basis of a permanent partial disability which the board’s examining physician characterized as “mild”. Approximately two and one-half years later, upon a showing of total disability due to sciatic nerve pain and restriction of movement, the ease was reopened and testimony taken, following which the award appealed from was made. The board found claimant totally disabled for a period of approximately six months, following which he returned to light work. Apjiellants question neither the finding of total disability nor that of causal relation implicit in the decision. On this record, we may not disturb the finding of a change, within the meaning of the statute authorizing award “upon proof that there has been a change * * * in the degree of disability of claimant not found in the medical evidence and, therefore, not contemplated at the time of the adjustment.” (Workmen’s Compensation Law, § 15, subd. 5-b.) Clearly, there was a change in “ degree ”, when mild partial disability became total disability requiring hospitalization for traction and other procedures, followed by immobilization, with cast from shoulders to hips, for eight weeks following discharge from the hospital. Not disputing the fact of a change in disability status, appellants contended in their application for board review that “ exacerbations and remissions are anticipated to an extent in a non-schedule adjustment” and in their brief upon this appeal quote trial counsel’s argument that in a disc case “ disability becomes total and partial, that it varies * * * that when [a claimant] makes this kind of a settlement in this type of ease that he knows he has to handle the medical problems in the future and pay it himself.” However persuasive appellants’ arguments might otherwise be, they are unsupported by medical evidence that total disability in future was or should have been “contemplated at the time of the adjustment” (Workmen’s Compensation Law, § 15, subd. 5-b) or were unsupported, at least, by any medical evidence that the board was bound to accept. Indeed, the one bit of [589] medical evidence to which appellants particularly point as confirming their theory of intermittent “flare-ups” is a physician’s report, filed prior to the lump-sum settlement, which includes a prognosis of “ Perm, partial disability ” (emphasis supplied) which is consistent with the theory upon which the award was predicated and, indeed, supports it. Parallel in respect of the pertinent issues was the factual situation in Matter of Goldbard v. Dixie Lake Hotel & Country Club (11 A D 2d 858) in which we indicated that award might properly be made for a change in degree of disability due to psyehoneurosis from partial to total. Decision affimed, with costs to the Workmen’s Compensation Board. Herlihy, Taylor and Aulisi, J.J., concur;