Opinion
November 4, 1960
Appeal by an employer and its insurance carrier from a decision and award of the Workmen's Compensation Board, appellants denying notice, and accident and causal relation. Claimant testified that while working as a boilermaker he dropped a baffle plate weighing 25 to 30 pounds on his right big toe, that he reported the accident to his foreman who obtained a bandage and bandaged the toe. The foreman testified that he did apply the bandage but that claimant did not report an accident, that "I thought he had trouble and I put a bandage on it and I didn't think anything about it." The conflict in testimony gave rise merely to an issue of credibility which the board was, of course, warranted in resolving as it did and in thereupon finding that an accident occurred and that the employer had actual knowledge and was not prejudiced by failure to give written notice. The injured toe became gangrenous and was amputated about five weeks after the accident. Claimant suffered from pre-existing diabetes and severe sclerotic changes. The amputation wound broke down and became infected and claimant was totally disabled for some five months. Each of two doctors who attended claimant found the accident a competent cause of the complications and disability which followed it. The evidence was substantial and requires that we affirm. Awards in markedly similar cases have previously been sustained. (See Matter of Morano v. Marine Basin Co., 4 A.D.2d 903, motion for leave to appeal denied 3 N.Y.2d 709; Matter of Sliwinski v. Sacred Heart R.C. Church, 1 A.D.2d 856.) Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.
In decisions Nos. 1-96 the court is as follows: Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.