Opinion
November 9, 1967
Appeal by the self-insured employer from a decision of the Workmen's Compensation Board which made a schedule award of $601.16 for a permanent 7 1/2% loss of use of the left foot. Claimant having died from causes unrelated to the accident, the award was posthumous. The decedent was examined and treated by Dr. Hoffman on a single visit, 13 days after the accident. Dr. Hoffman reported: "Edema of medial aspect of left ankle anterior to malleolus, contusion with edema and ecchymosis of medial aspect of knee, pretibial area. Patient did not return after first visit." Upon the basis of this report, Dr. Wolfe, the employer's medical consultant, reported: "After review of the only medical record in the file the C4 of Dr. Hoffman dated June 1, 1940, I do not believe there would be any posthumous schedule defect in the left lower extremity". Dr. Wolfe did not testify. Dr. Kornblith, the board's examining physician, reported the 7 1/2% loss of use which the board subsequently found and, in addition, testified to the same finding, stating that the same was "a medical judgment upon the findings in the file as meager as they are." Under the statute, "it shall be presumed in the absence of substantial evidence to the contrary * * * 5. That the contents of medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein." (Workmen's Compensation Law, § 21, subd. 5; emphasis supplied.) The report by Dr. Wolfe and that by Dr. Kornblith were the only medical reports submitted with respect to the posthumous claim. Each relied for his opinion on the report made by Dr. Hoffman. In his report, Dr. Wolfe summarily rejected the idea that there could have been any posthumous schedule defect, without giving any reasons. Similarly, Dr. Kornblith, in finding loss of use, failed to state the factors underlying his conclusion. However, Dr. Kornblith testified and was made available for cross-examination. He testified on the basis of his medical judgment "which is the best I could give in this particular case". No physician has said that Dr. Hoffman's report was insufficient to enable another doctor to make a diagnosis. On the contrary, each of the opposing experts relied upon it; and we cannot say that, as a matter of law, the board could not accept the uncontradicted testimony of its own examining physician. It is apparent from the record that Dr. Kornblith based his opinion on the fact that Dr. Hoffman's report reflected decedent's condition 13 days after the trauma, the implication being that the slow healing process indicated at least a very minor permanency. The brief cross-examination, while it elicited the fact that there was no evidence in Dr. Hoffman's report as to any limitation in motion, cannot be said to have destroyed Dr. Kornblith's opinion and his basis for it. At least we cannot say as a matter of law that the prima facie evidence of a valid claim set up under subdivision 5 of section 21, supported as it was, even though marginally, by testimony, was in any way met by any substantial evidence to the contrary. There was none. (Cf. Matter of Magna v. Hegeman Harris Co., 258 N.Y. 82; Matter of Bochkarev v. Henry's Landscaping Serv., 10 A.D.2d 398; Matter of Nowak v. Merritt, Chapman Scott Corp., 24 A.D.2d 798.) Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.