Where there is a condition of pain or continuing need for medical treatment, then an award for continuing disability benefits as opposed to a schedule award is warranted (see, Matter of Clark v General Elec. Co., 68 A.D.2d 960; Matter of Clifford v Larkin Rest., 31 A.D.2d 866). Here, insofar as the medical opinion on these issues was in agreement, there is substantial evidence to support the Board's decision to make a continuing disability award (see, supra; see also, Matter of Elkowitz v Tyrol Sportswear, 13 A.D.2d 566). We also reject the employer's argument that it was denied its due process right to cross-examination because the Board decided the case without taking medical testimony.
Thus, appellant's reliance upon Matter of Rowe v McGovern, Inc. (supra) is misplaced, since there was no indication therein that claimant's medical condition was continuing or unsettled. In our view, the record contains substantial evidence to sustain the board's finding that under the circumstances of this case, claimant's partial loss of hearing constitutes total disability (Matter of Elkowitz v. Tyrol Sportswear, 13 A.D.2d 566; Matter of Baggetta v. Rosch Bros., 2 A.D.2d 620). Decisions affirmed, with costs to the Workers' Compensation Board against the employer. Mahoney, P.J., Greenblott, Kane and Mikoll, JJ., concur; Main, J., not taking part.
(Workmen's Compensation Law, ยง 15, subd. 3-v; Matter of Gabriele v. International Paper Co., 25 A.D.2d 577; Matter of Elkowitz v. Tyrol Sportswear, 13 A.D.2d 566; Matter of Baggetta v. Rosch Bros., 2 A.D.2d 620; Matter of Arbanos v. E.I. Du Pont de Nemours Co., 275 App. Div. 881, mot. for lv. to app. den. 299 N.Y. 797.
The instant appeal upon a shortened record followed. The record presents a question of fact with ample evidence to support the board's finding that claimant's injury is related to more than a partial loss of use of a member, a circumstance which we have held to interdict the availability of paragraphs d and s of subdivision 3 of section 15 Work. Comp. of the Workmen's Compensation Law ( Matter of Baggetta v. Rosch Bros., 2 A.D.2d 620; Matter of Elkowitz v. Tyrol Sportswear, 13 A.D.2d 566; cf. par. [v]). Since claimant has suffered no loss of earnings other than those for which he has received full disability compensation, a consecutive schedule award would be impermissible in any event. ( Matter of Barbera v. Chez Vous Rest., 20 A.D.2d 942.) Decision affirmed, without costs.