p. 213In the Matter of the Claim of John Watford, Respondent, v Continental Can Company et al., Appellants. Workmen’s Compensation Board, Respondent.Argued November 21, 1975;decided December 22, 1975
p. 214Phyllis O’Connell for appellants.
I. There being no new accident in 1967, the rate applicable to the schedule loss payments for the consequential right hand injury is the rate in effect at the time of the 1959 accident. (Matter of Bernsohn v Ferguson Co., 284 App Div 1075 ; Matter of Neglia v Zimmerman, 237 NY 131 ; Matter of Draper v Draper & Sons, 201 App Div 770 .) II. The court’s decision was based upon an argument which claimant’s attorneys raised for the first time on appeal to the court. (Matter of McNaught v Louris Amusement Corp., 270 App Div 100 , 295 NY 990 ; Matter of Hedlund v United Exposition Decorating Co., 15 AD2d 973 , 11 NY2d 646 ; Matter of Bernstein v Riverdale Valet, 37 AD2d 647 ; Matter of Gordon v County of Erie, 30 AD2d 1022 ; Matter of Carbone v B & R Trucking Co., 23 AD2d 910 .) III. Since there was no industrial accident on May 31, 1967, there is no sanction in law or otherwise for increasing the payments for the 1967 consequential injury by applying the rate in effect on May 31, 1967. (Barrencotto v Cocker Saw Co., 266 NY 139 ; Matter of Gawrys v Buffalo Bolt Co., 302 NY 312 ; Matter of Jensen v Southern Pacific Co., 215 NY 514 ; Mindell v Travelers Ind. Co., 46 AD2d 263 .)David Mac Rae Wagner for John Watford, respondent.
It has been claimant’s position that the injury sustained on May 31, 1967 was a new industrial accident and compensation should have been payable accordingly. (Matter of McNaught v Louris Amusement Corp., 270 App Div 100 , 295 NY 990 ; Matter of Anderson v Babcock & Wilcox Co., 256 NY 146 ; Matter of Connelly v Samaritan Hosp., 259 NY 137 ; Matter of Jensen v Southern Pacific Co., 215 NY 514 .)Memorandum. The issue consistently and persistently
p. 215raised before the Workmen’s Compensation Board and before the courts is that the subsequent accident of 1967, although caused in part by the earlier 1959 accident, was substantially caused by the conditions of employment at the time of the second accident. On that basis claimant argued and still argues that he is entitled to compensation at the rate applicable at the time of the second accident. On this record however, we would conclude that "the present disability exists by reason of the two accidents” and the compensation should be apportioned
(Matter of Anderson v Babcock & Wilcox Co., 256 NY 146 , 149). The board, and the referee before that, never made an explicit finding as to the weights to be assigned to the concurrent causations, one related to the 1959 accident and the other to the 1967 conditions of employment. For lack of such an explicit finding the matter should be remitted to the board to redetermine the allocation of causation. It is not sufficient in this complex of facts to have found simply that the second accident was consequential to the first. Of course it was to some degree, since the knee which buckled in 1967 had been weakened by the 1959 accident. But it is also true that the hand injured in the second accident of 1967 could not have sustained the serious injury to it unless the conditions of employment, particularly the nature and placement of machinery with which claimant was working in 1967, contributed to the accident. In this case the allocation of substantiality of cause is a mixed question of fact, which is solely in the province of the board to determine.
On the other hand, it is unacceptable, as a matter of law, to allow claimant to recover benefits at a 1967 rate for an accident then occurring if it was merely "consequential” to the 1959 accident. It is not enough to characterize the result as "equitable”, especially since on precedent and principle it is unlikely that the award would have been considered "equitable” if either the employer or the carrier in 1967 were different from that in 1959 (cf. Matter of Phillips v Holmes Express Co., 229 NY 527 ; Matter of Anderson v Babcock & Wilcox Co., 256 NY 146 , supra).
Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand to the Workmen’s Compensation Board for proceedings in accordance with this memorandum.
Chief Judge Breitel and Judges Gabrielli, Jones, Wacht
p. 216ler and Fuchsberg concur; Judges Jasen and Cooke taking no part.
Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.