Opinion
November 6, 1967
Appeal by the employer and its carrier from a decision and award of benefits by the Workmen's Compensation Board on the ground that there is no substantial evidence to support the board's finding of causal relationship. Appellants assert that the medical testimony is not sufficient to support the board's determination of causal relationship between an accident in which claimant was injured when a truck he was driving overturned throwing him to the floor of the cab and a subsequent partial disability suffered by claimant to his right arm and shoulder. Three doctors testified as to causal relationship. Dr. Trepacz, the first neurosurgeon who examined claimant, clearly testified against causation. Dr. Corradini, a neurosurgeon, initially submitted a report supporting causal relationship, but when called as a witness indicated that he had based his conclusion on the understanding that claimant had snapped his neck at the time of the accident, an assumption completely unsupported by the record. Moreover, Dr. Corradini clearly testified that if claimant did not snap his neck and pain in the arm and shoulder did not manifest itself at or near the time of the accident (there is some slight indication of pain seven weeks after the accident, but it would appear that it was not until some four to six months after the accident that claimant really began to complain thereof), his opinion would be against causation. Thus, Dr. Corradini's testimony does not support the board's finding. The testimony of Dr. Mazza, the attending physician, while replete with "possibles" and "coulds" might conceivably be found sufficient under Matter of Ernest v. Boggs Lake Estates ( 12 N.Y.2d 414) to support the board except that Dr. Mazza unquestionably based his conclusion entirely on the premise that Dr. Trepacz and Dr. Corradini diagnosed nerve root involvement, which assumption is clearly erroneous, both physicians in fact concluding that there was no such involvement. Thus Dr. Mazza's testimony based on mistaken facts cannot satisfy the substantial evidence rule ( Matter of Backstrom v. Turner Constr. Co., 284 App. Div. 368). We are therefore confronted with a record that contains no valid medical testimony to support the board's conclusion as to causation and, accordingly, the board's decision must be reversed. Decision reversed, with costs to appellants against the Workmen's Compensation Board, and matter remitted for further proceedings not inconsistent herewith. Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.; Herlihy, J.P., dissents and votes to affirm. Herlihy, J.P. The record in my opinion establishes substantial evidence to sustain the finding of the board. The decision of the board should be affirmed.