Claim of Zimmerman v. Akron Falls Park — 29 N.Y.2d 815

Majority

p. 815

In the Matter of the Claim of Howard Zimmerman, Claimant, v. Akron Falls Park — Erie County, Respondent, and Special Disability Fund, Respondent. Workmen’s Compensation Board, Appellant.

Argued October 14, 1971;

decided November 18, 1971.

p. 817

Louis J. Lefkowitz, Attorney-General (Julius Fell, Ruth Kessler Toch and Daniel Polonsky of counsel), for Workmen’s Compensation'Board, appellant.

Howard Zimmerman, claimant, pro se.

Marvin H. Mason for County of Erie, respondent.

James P. Lynch and George Cholet for Special Disability Fund, respondent.

Order reversed, with costs against the respondents employer and Fund, and the decision of the Workmen’s Compensation Board reinstated in a memorandum: There was substantial medical evidence that claimant suffered a 50% loss of use of his arm attributable solely to the 1967 accident, and this the board properly found, ‘ ‘ in view of the restricted motion of the left shoulder and in spite of the prior left forearm amputation”. Thus, as the dissenters at the Appellate Division correctly concluded : ‘ ‘ The record clearly indicates that the award made to claimant was limited only to the injury caused by the 1967 accident. Claimant’s 1924 accident did not affect his left shoulder which was injured in the 1967 accident causing the 50% loss of use of the left arm.” (See Workmen’s Compensation Law, § 15, subd. 7.)

Concur: Chief Judge Fuld and Judges Burke, Bergan, Breital and Gibson. Judges Scileppi and Jasen dissent and vote to affirm on the opinion at the Appellate Division.