Opinion
October 26, 1972
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed November 12, 1971. Claimant sustained an accidental injury on April 24, 1969 when he fell 40 feet from a ladder. As a result of the fall, claimant suffered a compression fracture of the second lumbar vertebral body with interference with bladder and rectal function resulting in incontinence. The board found that "claimant had a marked partial disability by reason of his back condition plus an incontinent condition" resulting in claimant's total disability. Four of the five medical experts testifying concluded that either claimant was totally disabled or partially disabled but unemployable due to his incontinence. Appellant contends that since the board found claimant was only partially disabled medically, it was precluded from making an award of total disability. Based on the record here, there is substantial evidence of a total loss of earning capacity even though claimant's medical disability was only partial. Since several medical experts testified that claimant was unemployable, such medical testimony is sufficient to support an award for total disability. ( Matter of O'Laughlin v. Federal Reserve Bd. of N Y, 275 App. Div. 876, mot. for lv. to app. den. 299 N.Y. 799. ) Decision affirmed, with costs to the Workmen's Compensation Board. Staley, Jr., J.P. Greenblott, Cooke, Kane and Reynolds, JJ., concur.