Claim of Girard v. St. Joseph Mineral Corp.

69 A.D.2d 968, 416 N.Y.S.2d 98, 1979 N.Y. App. Div. LEXIS 11733

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1979
• Status: Published

Opinions

Appeal from a decision of the Workers’ Compensation Board, filed December 29, 1977, which found that decedent’s death was not related to his occupational disease. The decedent, claimant’s husband, last worked for the employer in 1955. On May 9, 1973, decedent was advised that he had a respiratory condition and a claim for benefits was filed. This claim was controverted and, after a hearing, a referee found that claimant was suffering from chronic bronchitis, talcosis, silicosis and pulmonary emphysema causally related to his employment by reason of which he was permanently and totally disabled, and an award was made against the employer. On July 26, 1974, the board affirmed the referee’s decision. On March 6, 1974, decedent was admitted to Upstate Medical Center where Dr. Makhuli diagnosed an abdominal aortic aneurysm. Consultation was had with Dr. Bredenberg of the cardiovascular service, who was under the impression that no further treatment for the aneurysm should be done. On March 13, 1974, the decedent was discharged to the care of his physician. On October 5,1975, decedent was admitted to E. J. Noble Hospital, Gouveneur, New York, complaining of back pain radiating into the groin. His family was advised to transfer him to Upstate Medical Center for surgery. Decedent was scheduled for transfer on October 15, 1975, but he died on October 12,1975. The family refused permission to perform an autopsy. The death certificate indicated that the immediate cause of death was cardiac arrest due to, or, as a consequent of the abdominal aortic aneurysm, and chronic lung disease. Decedent’s widow then filed a claim for compensation in a death case. At the hearings held on this claim, three physicians were called to testify. Dr. Nash rendered an opinion that the decedent’s pneumoconiosis contributed to his death in that he had a well-documented abdominal aneurysm that could not be operated on, in view of the respiratory disease, and the denial of the benefits of surgical therapy contributed markedly and directly to the cause of his death. Dr. Maxon, an impartial specialist and expert chest consultant reported that: "The cause of death as listed in the death certificate; namely, cardiac arrest due to chronic lung disease is not supported by the clinical facts. It is the considered opinion that death of this claimant was due to hemorrhage from a ruptured aortic aneurysm. The development of the aneurysm was in no way related to the pulmonary disease, nor did the pulmonary disease contribute to in any way to the terminal events. Under these circumstances the claimant’s death is unrelated to any of his occupation.” Dr. Maxon further testified that accepted medical practice is to defer surgery to correct an abdominal aneurysm until the aneurysm poses immediate danger. Dr. Schlamowitz, an internist, reviewed the decedent’s medical records at the request of the employer, and reported that there was no causal relationship direct or indirect between this patient’s demise and his pulmonary condition. The referee determined that death was due to a rupture of the abdominal aortic aneurysm and not causally related to claimant’s compensable pneumoconiosis condition. The board affirmed the decision of the referee, stating: "Upon review of the record the Board Panel finds, based on the testimony of Dr. Maxon and Dr. Schlamowitz, that the decedent’s death on 10/12/75 was not causally related to his occupational disease.” The selection by the board of one of two conflicting medical opinions was within its fact-finding power (Matter of Blome v Presti Auto Sales, 43 AD2d 1002) and, accordingly, the decision of the board, being supported by substantial evidence in the record, must be affirmed. Decision affirmed, without costs. Sweeney, J. P., Kane, Staley, Jr., and Main, JJ., concur.