Opinion
August 1, 1961
Appeal by employer and its carrier from a decision and award of the Workmen's Compensation Board. On March 18, 1958 while claimant was working as a part-time employee of appellant employer he suffered a severe lumbosacral sprain bending over to pick up a pail of water which the board found "acute" requiring his immediate removal to the hospital. Appellants contend there is no substantial evidence to support a finding (1) that there was an "accident" on March 18, 1958 within the meaning of the Workmen's Compensation Law (2) that there was causal connection between the alleged accident and the disability subsequent to March 15, 1958 and (3) that there was any causally related disability beyond June of 1958. Appellants attribute claimant's injury to two previous back injuries in 1953 and 1956, while claimant was working for another employer. The medical testimony would permit the finding, however, that there was recovery on both previous occasions and that the incident in question was a separate accident. After both previous injuries claimant returned to the heavy work that he had been engaged in before. Appellants claim that a person with a healthy back does not merely bend over and become severely injured ( Matter of Brunswick v. Spangenthal, 9 A.D.2d 983; Matter of Parks v. De Franco, 4 A.D.2d 904). The testimony reveals, however, that prior to his stooping to pick up the pail he had been engaged in moving furniture and that this prior exertion plus the sudden bending could cause the injury. On April 7, 1958 claimant returned to work but could only do light work and was forced to give up his part-time job with appellant employer. Even appellants' expert admitted claimant had some degree of permanent disability. Appellants cite the Brunswick and Parks cases as controlling but both cases are distinguishable on the basis of the severity of the previous injuries, the constant pain subsequent to the initial injury and the experience of pain directly prior to the alleged accident. The evidence warrants the finding of an independent accident (cf. Matter of Colangelo v. McCarey Co., 13 A.D.2d 592; Matter of Scavo v. Frank D'Aprile, Inc., 7 A.D.2d 679, mod. 8 A.D.2d 927; Matter of Andrzejewski v. Jamestown Malleable Iron Corp., 7 A.D.2d 682; Matter of Giordano v. Hudson Dairy Co., 6 A.D.2d 936). Decision and award affirmed, with costs to the Workmen's Compensation Board. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.