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…