SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 27, 1968
IN THE MATTER OF THE CLAIM OF SAM MANIKOFF, RESPONDENT,
YOUR BAKING CO. ET AL., APPELLANTS. WORKMEN'S COMPENSATION BOARD, RESPONDENT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board which reaffirmed its prior decision that the claimant had not retired from the labor market and awarded benefits to the claimant. The appellants contend that the record does not contain medical evidence of disability covering the period of the award, but this issue was not raised before the board and, accordingly, may not be raised here. The appellants further contend that there is substantial evidence that the claimant has voluntarily retired from the labor market. It is not our function to weigh the evidence before the board and the finding of the board that the claimant retired because of his injuries is supported by the testimony of the claimant and the medical proof of disability.
Decision affirmed, with costs to the Workmen's Compensation Board.
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