Claim of Donahue v. Thomas H. Bradley, Inc.

Appeal from a decision of the Workers’ Compensation Board, filed June 9,1981. Claimant, a 73-year-old semiretired store manager, injured his left knee on October 30, 1978 when he stepped off a ladder. On April 25, 1980, claimant was examined twice by Dr. Smyth, a board medical examiner. Initially, he found a lVz% loss of use of the left leg. However, upon reexamination and reconsideration, he concluded that a finding of permanent partial disability was warranted. After receiving Dr. Smyth’s testimony, the referee classified claimant as having a nonschedulable permanent partial disability. The board affirmed the referee’s decision and this appeal by the employer and insurance carrier was commenced. Upon appeal, the employer and its insurance carrier contend that claimant’s injury is a schedule type injury. In this regard, whether claimant’s disability is schedulable is a question of fact within the exclusive power of the board to decide (Matter of Cecere v County of Niagara, 71 AD2d 759, 760; Matter of Clifford v Larkin Rest., 31 AD2d 866, 867). Accordingly, if the board’s determination is supported by substantial evidence, it must be affirmed. In our opinion, the instant record contains substantial evidence to sustain the board’s finding that under the circumstances of this case, claimant has a permanent partial disability. Decision affirmed, with costs to the Workers’ Compensation Board. Kane, J. P., Casey, Yesawich, Jr., Weiss and Levine, JJ., concur.