Claim of Keesler v. Dunn & McCarthy, Inc.

Weiss and Casey, JJ., dissent and vote to affirm in a memorandum by Weiss, J. Weiss, J. (dissenting).

We respectfully dissent. There is no dispute that claimant’s condition has changed “materially and substantially” since the 1974 lump-sum settlement. The pivotal question is whether this change is due to the third accident or, at least in part, a consequence of the earlier disability “not contemplated at the time of the adjustment” (Workers’ Compensation Law § 15 [5-b]) such that an apportionment between accidents is required. Dr. De Luca essentially testified that claimant’s disability would probably have remained at the same level if the third accident did not occur. From this testimony the Board could readily infer that the new, intervening third accident precipitated the change in claimant’s condition from a “mild permanent partial disability” to one of total disability. In such event, the closed cases should not be opened for reapportionment (see, Matter of Shafaransky v Cosmos Footware Corp., 277 App Div 803; cf., Matter of Rizzo v Glenwood Clothes, 33 AD2d 611; Matter of Minch v Eber Bros. & Co., 12 AD2d 827).