
    In the Matter of the Claim of Orville Cross, Respondent, against Endicott Johnson Corporation, Appellant. Workmen’s Compensation Board, Respondent.
   Claimant was employed as a foreman in the sample department of the appellant’s shoe manufacturing plant. In lifting an empty sample ease weighing ten pounds he suffered a rupture of the long head of the biceps of his right arm. The board has made an award "for 20 per cent loss of use of right arm”. The medical proof supporting this award was given by two physicians employed by the Workmen’s Compensation Board as medical examiners. One was the acting chief medical examiner of the board who testified in substance that it was the direction of the board to all doctors that a rupture of the biceps constitutes a loss of between 20 and 35% of the use of the arm. This predetermined policy was applied without regard to the actual loss of use resulting from the injury to the claimant. The acting chief medical examiner testified in part: you may not even have a limitation in the shoulder because it is intact, but in all our biceps ruptures invariably we find no limitation in the shoulder or the elbow and still give the specific finding.” The examiner found some “ slight defects ” in the grasping power of the claimant which were not specifically evaluated in terms of loss of use. He continued: “I say even if he didn’t have a defect in grasping, in other words he had a normal grasp, assuming that he does have a normal grasp so that the slight defects that I find in grasping weren’t present, I still would give 20 per cent of the arm on a specific anatomical defect as per instructions, issued to the Medical Department.” The statute (Workmen’s Compensation Law, § 15, subd. 3, par. s) authorizes an award for a permanent partial loss of a member of the body, or for a loss of use ” thereof. There is no substantial evidence in this record of the extent of the loss of use of the arm in this ease. Award reversed on the law, and the claim remitted to the board for further consideration of the question of the loss of use, if any, of this claimant’s right arm resulting from this accident, with costs against the Workmen’s Compensation Board. Foster, P. J., Brewster, Deyo, Bergan and Coon, JJ., concur.  