Opinion
282 A.D. 909 125 N.Y.S.2d 100 In the Matter of the Claim of KENNETH MACINTOSH, Respondent, v. UNITED TRACTION COMPANY et al., Appellants. WORKMEN'S COMPENSATION BOARD, Respondent. Supreme Court of New York, Third Department. October 16, 1953
Appeal from a decision and award of the Workmen's Compensation Board. The claimant had been in the employ of the United Traction Company, one of the appellants, for about twenty-three years as a bus driver. The medical proof justified the finding that he was suffering from a ruptured spinal disc which caused total disability for a time and partial disability thereafter. The board made an award for total and partial disability on the theory that the claimant's condition was due to an occupational disease. The medical proof was unsatisfactory and ambiguous. The board itself requested supplementary reports but in the end the record still remained in need of clarification. It appeared that the claimant had suffered an accidental injury to his back about fifteen years before the making of his claim, as the result of slipping and falling on an icy walk. He was paralyzed from the hips down for ten to fifteen minutes but he recovered and went on to work. It is conceded that this injury was unrelated to his employment. There was also some evidence of other accidents unrelated to the employment. It is difficult to determine from the board's memoranda and findings, when they are read together, whether the board found that the long continued bus driving caused the disc condition or whether it found that the bus driving had aggravated a disc injury sustained in the unrelated accident or accidents. If the former was the basis of its decision, it is without substantial support in the record since the only proof on the point is that it was possible for bus driving to cause the disc condition but there was no proof that it had caused it in this case. If the board meant to base its decision upon a finding of aggravation of pre-existing unrelated disc injury, it is questionable whether the aggravation of such an injury constituted an occupational disease, naturally incident to the claimant's occupation, and further proof should be received on that question. The case should be remitted to the board for further proof and for clarification of its findings. Decision and award of the Workmen's Compensation Board reversed, on the law, without costs, and the matter remitted to the board for further proceedings in accordance with this memorandum.
Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.