Opinion
May 10, 1956
Present — Bergan, J.P., Coon, Halpern, Zeller and Gibson, JJ.
Appeal by the employer and carrier from an award of the Workmen's Compensation Board granting disability compensation to claimant on account of reduced earnings. The sole contention of appellants is that the award should be a schedule award for a percentage loss of a member, pursuant to paragraphs d and s of subdivision 3 of section 15, instead of an award for continuing permanent partial disability, pursuant to paragraph v of subdivision 3 of section 15 as made by the board. In the course of his employment claimant sustained an injury to his right ankle and leg which included, but was not confined to, a fracture of the distal end of the right tibia. There is medical testimony that the injury resulted in a permanent 20% to 30% loss of use of the right foot, and appellants contend that a schedule award should be made on that basis. However, all of the medical evidence indicates the continuing presence of oedema and swelling around and above the right ankle, accompanied by limitation of motion and pain upon motion. The pain cannot be confined to the partial loss of a member, though it emanates from an injury to that member. The chief medical examiner of the Workmen's Compensation Board, to whom the case had been referred for that specific purpose, reported that the case was not a proper one for schedule evaluation. At best the record presents a question of fact with evidence to sustain the board's finding that claimant's injury is more than a partial loss of a member and constitutes permanent partial disability. ( Matter of Miller v. Associated Transp., 279 App. Div. 829; Matter of Arbanos v. Du Pont de Nemours Co., 275 App. Div. 881, motion for leave to appeal denied 299 N.Y. 797.) Award unanimously affirmed, with costs to the Workmen's Compensation Board.