In the Matter of the Claim of Earl Tracey, Respondent, v. Dominic Tantalo et al., Appellants. Workmen's Compensation Board, Respondent

In the Matter of the Claim of Earl Tracey, Respondent, v. Dominic Tantalo et al., Appellants. Workmen’s Compensation Board, Respondent. [MAJORITY] The employer and carrier appeal from -a finding of 50% continuing causally related permanent partial disability and the computation of the claimant’s average weekly wage pursuant to section 14 of the Workmen’s Compensation Laiv. A report by Dr. James A. Elkins, who examined the claimant ¡on behalf of the appellants, advised that the claimant did not have a ruptured disc •— as described by claimant’s doctor • — but that he suffered an ¡aggravation of pre-existing arthritis, which resulted in a 50% permanent partial disability. The doctor was not called to testify and the report is not controverted by any evidence in the record. An impartial specialist also testified that claimant was suffering from arthritis. The record as a whole establishes that at the very least the claimant did aggravate a pre-existing arthritic condition, which is permanent and that he is at least 50% disabled as a result thereof. The board properly applied the provisions of section 14 in computing his average weekly wage as his employment was not seasonal but subject to weather conditions and the claimant did not limit his employment. Decision unanimously affirmed, with costs to the Workmen’s Compensation Board. Present ■ — Bergan, P. J., Coon, Gibson, Herlihy and T-aylor, JJ.