Claim of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works

106 N.E.2d 12, 304 N.Y. 65, 1952 N.Y. LEXIS 782
CourtNew York Court of Appeals
DecidedApril 17, 1952
StatusPublished
Cited by79 cases

This text of 106 N.E.2d 12 (Claim of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Claim of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 106 N.E.2d 12, 304 N.Y. 65, 1952 N.Y. LEXIS 782 (N.Y. 1952).

Opinion

Fuld, J.

In February of 1950, the Workmen’s Compensation Board awarded claimant compensation for total disability upon the hypothesis that a 1943 accident had activated a pre-existingquiescent tuberculosis. Upon appeal, the Appellate Division, concluding that there was no substantial evidence to support [68]*68the Board’s finding that the disability resulted from the accident, reversed, and with that determination we agree.

The accident occurred on February 12, 1943, when the upper portion of a molding machine operated by claimant separated and flew off, striking him in the chest and chin, and fell on his left foot. Parts of two toes had to be amputated and his chest was bruised. A claim was filed with the Board for compensation for the injuries resulting from the accident, and that case was originally closed in January, 1944, with an award for 20% loss of use of the left foot. An examination of claimant’s lungs, made in connection with the accident claim, revealed something wrong and he was advised to file a new claim for ‘ ‘ an industrial occupational disease.”

Numerous physicians examined claimant in connection with the new claim, and all testified that he was suffering from sill-' cosis, which coexisted with a probable tuberculosis infection in the lungs. His exposure to silica dust, in his occupation as a molder, was considered by all — including claimant’s witnesses, Dr. Nowak and Dr. Scott — to be the cause of the silicosis-tuberculosis condition. The referee, finding claimant to be totally disabled as a consequence of this ailment, rendered an award under old Article 4-A of the Workmen’s Compensation Law dealing with silicosis and other dust diseases. The Board, however, on the carrier’s appeal, in November, 1945, rescinded the determination on the ground that in our considered judgment ”, claimant is not totally disabled because of the silicosis” — which, as the statute expressly provided, rendered the claim noncompensable under Article 4-A (Workmen’s Compensation Law, § 66, repealed by L. 1947, ch. 431, § 14; similar provision embodied in present § 39). In so ruling, the Board went on to direct “ that the record should be further developed as to whether the claimant had or has an active tuberculosis related to the accident.”

On the remand, however, claimant, through his newly retained attorney, contended that the Board’s decision did not preclude further consideration of the silicosis claim; regarding it as absurd ” to assert that claimant’s illness was connected with the accident, his counsel urged that the issue of total or partial disability under Article 4-A should be settled, once and for all, by the Board’s expert consultant. The referee [69]*69nevertheless ruled that the Board’s decision authorized him to try only the single issue whether claimant’s illness was related to the accident, and he proceeded to take testimony on that question.

For the carrier, Dr. Strohm and Dr. Donnelly, both chest specialists, declared that, in their opinion, the accident had no bearing upon claimant’s tuberculosis infection, having neither caused nor in any way aggravated his condition.

Dr. Nowak, a general practitioner and claimant’s personal physician, and Dr. Scott, an internist, were again called by claimant. Both had consistently, in their reports and their prior testimony before the Board, taken the position that claimant’s silicosis and tuberculosis were occupationally caused, and Dr. Scott, at least, adhered to this diagnosis on the stand, concluding, in response to questioning by claimant’s attorney, that “ I think there was no direct causal relationship ” between the accident and claimant’s “ present condition ”. When pressed further as to whether the injuries suffered in the accident “ would * * * tend to aggravate or activate a [pre-existing tubercular] condition rather than to have a beneficial effect upon the * * * condition ”, he testified that “ I can’t make a direct statement as to that.” Dr. Nowak also reasserted, in an early part of his testimony, the diagnosis that ‘ ‘ the silicosis underlies the whole condition ’ ’ — but, when the theory of a relationship between the accident and the claimant’s illness was suggested to him on direct examination, he then, for the first time, stated that he believed that the accident did aggravate the tuberculosis.

Quite obviously, such inconsistent, variable testimony was not worthy of belief, and the referee in effect so concluded, holding that “ there is no causal relationship [between accident and disability] and I so find.” On appeal, the Board in December of 1946 rescinded all prior determinations and directed that an expert consultant render an opinion. Thereafter, Dr. Whipple, the Board’s consultant on lung diseases, reported — and his report was concurred in by two other impartial physicians — that, while claimant was “ totally ” disabled from “ silicosis with infection, probably tuberculosis ”, such disability is causally related to his occupation as a moulder. There is no evidence to associate his disability or [70]*70aggravation of his silicosis or infection as a result of alleged injury 2/12/43.”

Because of that expert panel’s finding of total disability, the silicosis claim was relitigated.1 The referee found that claimant was only partially disabled, and, accordingly, disallowed the claim. There followed a new appeal to the Board, on which claimant again contended that the evidence called for a finding of total disability. There was not the faintest suggestion of an intention to press the accident claim, counsel stating that the only question to be passed upon is that of the weight to be attached to the opinion of your own experts. ’ ’ Some time later, in March, 1948, the Board did rescind the referee’s award, but — ignoring claimant’s arguments and the testimony of the expert panel — placed its decision on the ground that the accident, superimposed upon a quiescent tuberculosis, activated such tubercular condition, causing it to progress to its present state and resulting in claimant’s being permanently, totally disabled ”.

Despite the Board’s ruling, the referee by whom the case was then heard rendered an award for total disability resulting from silicosis, and, most strangely, the Board confirmed that award. The employer thereupon appealed to the Appellate Division and, while that appeal was pending, the Board in February of 1950, declaring that the award did not reflect its prior rulings, modified its decision “ by finding accident ” and by adjusting the amount of the award to meet the changed basis of compensation. The carrier filed a new appeal, and, as earlier indicated, the Appellate Division reversed and set aside the award; the court, in addition, reinstated the Board’s original 1944 decision awarding claimant compensation for 20% loss of his left foot and closing the case. (See 279 App. Div. 945.)

The question that we are called upon to decide is whether the Board’s decision that there was a causal relationship between the accident of February 12,1943, and claimant’s tuber[71]*71cular condition is supported by substantial evidence. (See, e.g., Matter of McCormack v. National City Bank, 303 N. Y. 5; Matter of Avon Bar & Grill v. O’Connell, 301 N. Y. 150; Matter of Tompkins v. Board of Regents, 299 N. Y. 469; Matter of Miller v. Kling, 291 N. Y. 65; Matter of Stork Restaurant v. Boland, 282 N. Y.

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Bluebook (online)
106 N.E.2d 12, 304 N.Y. 65, 1952 N.Y. LEXIS 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-kopec-v-buffalo-brake-beam-acme-steel-malleable-iron-works-ny-1952.