construing art. 6243f, § 10
How later courts described this case
- construing art. 6243f, § 10
Written by the judges who cited it.
The opinion
On Motion for Rehearing
Much is said in appellant’s motion for rehearing to the effect that appellee has only a stiff little finger. It must be remembered that appellant conceded, both in the1 trial court and in this Court, that although appellee has made maximum improvement after a tendon graft was performed in September, 1966, during appel-lee’s second hospitalization for that injury, he is unable to perform the duties of a fireman in his present condition. Such concession is based on the unanimous opinion of the four doctors who examined or treated appellee and the testimony of the fire chief.
Much can be said, both pro and con, concerning the desirability of statutory authority to require a pension claimant to submit to the treatment of his injury which an ordinary prudent person would follow in the same or similar circumstances. The fact remains, however, that the Legislature has not given appellant this authority. It must follow that in the absence of such power the Board is not authorized to, in effect, penalize appellee by declaring that although it does not care if he has the finger amputated or not, he will be considered as not permanently disabled unless the surgery is undertaken and is not successful. We do not believe the Legislature intended a pension claimant to be put to such an election.
*391 The basic answer to the question before us is that, since appellee has been admittedly totally disabled from performing the duties of a fireman for more than the required 91 days and has made maximum improvement, he is permanently disabled within the meaning of said Act. In re Gilbert, 165 Mise. 222, 300 N.Y.S. 790 . Should this condition change, provision is made under said Act for readjustment of appellee’s pension.
Appellant’s motion for rehearing is overruled.