Claim of Tum v. Elmira Coca Cola Bottling Works, Inc. , 277 A.D.2d 800 ( 1950 )

Appeal by employer and its insurance carrier, the Travelers Insurance Company, from a decision and award of the Workmen’s Compensation Board dated August 6, 1948. On July 19, 1933, claimant suffered an injury to his back while lifting, for which a claim was filed and an award made covering total disability from July 27, 1933, to August 7, 1933. The Travelers Insurance Company was the employer’s insurance carrier at the time of this accident. On April 10, 1947, after claimant had driven in employer’s truck from Elmira to Corning, he felt a severe pain in his back and had difficulty in straightening up. At the time of this occurrence Utica Mutual Insurance Company was the employer’s insurance carrier. Subsequently, claimant was disabled from April 23, 1947, to October 6, 1947, during which period claimant was paid his regular wages in full by employer. The board found the occurrence of April 10, 1947, did not constitute an accidental occurrence within the meaning of the Workmen’s Compensation Law, and claim for injury on April 10, 1947, was disallowed. The board found that the disability from April 23, 1947, to October 6, 1947, was but a manifestation of a pre-existing condition causally related to accidental injuries sustained on July 19, "1933, and made an award against the employer and the Travelers Insurance Company. The Eund for Reopened Cases was discharged because the board found that the payment of wages by the employer constituted payments of compensation within the time limits provided by the Workmen’s Compensation Law. The findings and decision of the board are sustained by the evidence. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Poster, P. J., Heffeman, Brewster, Bergan and Coon, JJ. [See post, p. 814.]