Claim of Guest v. Western Gateway Roofing Metal Works , 21 A.D.2d 918 ( 1964 )

Per Curiam.

Appeal by the claimant from a decision of the Workmen’s Compensation Board holding that the case should be scheduled rather than decided on a permanent partial disability and since claimant had received benefits in excess of the schedules the ease was closed. On January 31, 1955 claimant, a roofer, suffered injuries to both legs when he fell from a hangar roof. On April 29, 1957 the following Referee’s decision was handed down: “This is not a case to be decided by schedule. Award December 28, 1956 to date as $36.00. 75% partial disability tentative. Continued with compensation same rate to early calendar. Question of permanent disability.” The question of permanent disability was not, however, considered again, despite intervening hearings, until September 28, 1960 when a different Referee made schedule awards and closed the ease. Subsequently the board affirmed and the instant appeal followed. Claimant asserts that the board had no authority to affirm the reversal of the prior Referee who found the case was not to be scheduled, We cannot agree. It is sufficient to point out here that the board could properly find that since the decision of April 29, 1957 did not determine the question of permanency, it was not a final determination as to whether the award should be scheduled or based on permanent partial disability and therefore that it and the intermediate awards prior to September 29, 1960 were simply interlocutory in nature. This being so the Referee and the board properly had before them as a question of fact the nature of the award. We find no reason to disturb the board’s resolution of this issue. Decision affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Hamm, JJ., concur.