SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 13, 1968
IN THE MATTER OF THE CLAIM OF CARMELO PERGOLIZZI, RESPONDENT,
LAFATA CONSTRUCTION CORPORATION ET AL., APPELLANTS, AND CAM CONSTRUCTION COMPANY ET AL, RESPONDENTS. WORKMEN'S COMPENSATION BOARD, RESPONDENT
Appeal from a decision of the Workmen's Compensation Board which awarded compensation at a tentative reduced earnings rate, for partial disability commencing May 18, 1965 due to a back condition found by the board to be related to an accidental injury of July 11, 1962.
Gibson, P. J. Gibson, P. J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gibson, P. J.
Appellants' sole contention is that there is no substantial evidence supportive of the award. They assert, in particular, that the medical evidence (including that adduced from claimant's own physicians) is that claimant's disability during the period of the award was due to conditions unrelated to the 1962 accident, these including a chronic lung disease. The board's decision, however, specifically notes the report of minimal partial disability related to the 1962 accident, made by appellant carrier's medical director and examining physician, the weight of whose conclusion was, of course, for the board's determination. Supervening non-industrial causes of disability did not serve to relieve the employer of responsibility for a partial disability thus established. (Matter of Papkoff v. Feldman, 26 A.D.2d 140, affd. 19 N.Y.2d 932.)
Decision affirmed, with costs to the Workmen's Compensation Board.
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