Claim of Gates v. Gouverneur Talc Co.

72 A.D.2d 638, 421 N.Y.S.2d 126, 1979 N.Y. App. Div. LEXIS 13776

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1979
• Status: Published

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed April 14, 1978. The board found: "the evidence, particularly the testimony of Dr. Brock, Dr. Miller and Dr. Port, indicates claimant had pneumoconiosis-talcosis to a minimal degree * * * that a claim for bronchitis would be barred by Section 28 and that there is no significant evidence of causally related bronchitis; further that the medical evidence fails to show that the claimant’s minimal causally related talcosis aggravated claimant’s underlying cardiac condition.” The evaluation of medical evidence is a prerogative of the board and its decision is supported by substantial evidence. The' reliance by appellant upon the case of Matter of Wall v Premium Transp. Serv. (67 AD2d 759) is unwarranted as the favorable opinion of one doctor does not constitute "uncontradicted testimony”. The issue there involved section 15 (subd 8, par [a]) of the Workers’ Compensation Law. The appellant also relies upon the cases of Matter of House v International Talc Co. (51 AD2d 832) and Matter of McDonald v Atlas Steel Casting Co. (55 AD2d 758) as authorities requiring a finding that the talcosis is compensable, however, those cases are inapposite because they involve findings of total disability caused by dust disease and the decisions of the board were affirmed by this court. Decision affirmed, without costs. Greenblott, J. P., Sweeney, Staley, Jr., Main and Herlihy, JJ., concur.