Opinion
October 6, 1955.
Appeal from Workmen's Compensation Board.
Respondents urge first that the appeal should be dismissed because appellants failed to appeal from a decision of the board dated November 23, 1954, which fixed the date of disablement as of November 3, 1950. Appellants appealed from a decision of the board dated April 6, 1954, which fixed the date of disablement as of April 26, 1951. After the appeal had been taken, and while it was pending in this court, the board modified its decision as indicated by changing the date of disablement but made no motion to dismiss the appeal. The appeal therefore must be deemed to have been properly taken and brings up for review the intermediate decision and the award based on it ( Matter of Piekut v. Philip Fleischer, Inc., 276 App. Div. 702). On the merits we think the award should be reversed and the matter remitted to the board for further proof or such action as may be advised. The history of claimant's employment is as follows. He was employed as a brewery worker by the Schaefer Brewing Company from April 7, 1948 to November 3, 1950, and his duties required him to handle barrels, lift them and stack them. From November 3, 1950 to December 7, 1950, he did not work. On December 7, 1950, he went to work for the Trommer Brewing Company. He continued to work there and was so working on March 12, 1951, when the Trommer Brewing Company was sold to Piels, another company in the same business. Claimant continued to work during all of 1951 and then was laid off because business had slowed down. On April 26, 1951, claimant was seen by a physician who found him suffering from Dupuytren's contracture of both hands, nevertheless he continued to work until the end of that year. Claimant told his physician that he had noticed "cords" in his hands in April of 1950. The board found that the disease or condition of Dupuytren's contracture had its inception within twelve months previous to the date of disablement. It also found that the date of disablement was November 3, 1950. There is no substantial evidence in the record to sustain the latter finding. It is true that claimant left the employment of the Schaefer Brewing Company on November 3, 1950, but nowhere in the record is there any claim on his part that he left such employment because he was disabled, nor is there any medical proof that he was disabled on that date. It is true that the board may fix the date of disablement but it may not do so arbitrarily and without some proof to sustain its finding. Moreover the finding that the disease was initiated within twelve months previous to November 3, 1950, must depend upon the testimony of Dr. Sherman, who first saw claimant on April 26, 1951. In one place in the record this physician gave as his opinion that the inception of the disease which he found claimant suffering from was in April, 1950. This opinion was based upon the history which claimant gave him that he first noticed the appearance of "cords" in his hands in 1950. Later on this same physician conceded that the condition was initiated prior to April, 1950. Testimony of this character is not of sufficient substance to support a finding that claimant contracted the disease in April, 1950. Award reversed, with costs to appellant against the Workmen's Compensation Board, and the matter remitted to the board for further proof or such action as it may be advised. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur.