Claim of Konieczny v. Butterflake Shop

71 A.D.2d 718, 419 N.Y.S.2d 213, 1979 N.Y. App. Div. LEXIS 12929

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1979
• Status: Published

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed December 8, 1977, finding that claimant did not sustain an occupational disease within the meaning of subdivision 2 of section 3 of the Workers’ Compensation Law. Claimant had a history of a 39-year period of heavy smoking and a 24-year period of employment as a baker when he was employed by the Butterflake Bake Shop. Six months later he was diagnosed as suffering from severe chronic obstructive pulmonary disease secondary to asthmatic bronchitis and emphysema. The record reflects contradictory medical evidence regarding the issue of whether claimant sustained an occupational disease. Claimant’s contention that the issue of occupational disease is a question of law for the board is without merit. It is only where there are not conflicting inferences to be drawn that the question becomes one of law (Matter of Paduano v New York State Workmen’s Compensation Bd., 30 AD2d 1009, affd 25 NY2d 669). Where, as here, there is conflicting medical proof, the question is one of fact for the board. The board found: "Upon review, a Majority of the Panel finds, based on the credible medical testimony, particularly the report and testimony of Dr. Riley, that the claimant did not sustain an occupational disease within the meaning of the Workmen’s Compensation Law.” There is substantial evidence to sustain the determination of the board. Decision affirmed, without costs. Mahoney, P. J., Greenblott, Kane, Main and Mikoll, JJ., concur.