Opinion
June 19, 1967
Appeal by the employer and its insurance carrier from decisions of the Workmen's Compensation Board dated May 17, 1965 and May 3, 1966 which held that the claimant was suffering from an occupational disease, selenium poisoning. The claimant commenced working for the employer in 1944. From 1944 to 1950, he worked as a drill press operator and a production machinist. From 1950 to 1958, he was engaged in general maintenance and as an electrician. From 1957 to 1958, his maintenance work brought him periodically into the selenium plate processing department. From 1958 until the termination of his employment on August 24, 1962, he worked as a production foreman in the plate processing section of the Selenium Rectifier Manufacturing Department. On August 28, 1962, he was taken ill and was admitted to Kew Gardens Hospital. On September 14, 1962, the claimant filed a claim for compensation alleging selenium poisoning. The appellants contend that the board's findings are not supported by substantial evidence. The reports of the attending physician, Dr. Safran and Dr. Arthur Gordon, who was called in for consultation, indicate that the claimant was hospitalized on August 28, 1962 by reason of a diffuse viral infection. These reports and the testimony of Dr. Gordon indicate that, in their opinion, the claimant was also suffering from an underlying illness which they diagnosed as selenium poisoning. Dr. Gordon based his opinion on the case history which showed a 12-month prior period of spells of weakness, dizziness and pyrexia, as well as complaints of dryness in throat, and a taste of selenium in the mouth, and the possibility of hazardous exposure to selenium by reason of an imbalance in the ventilation of the ovens in a room where the claimant worked, which imbalance was discovered on September 10, 1962, according to the report of Dr. Kleinfeld, the Director of the Division of Industrial Hygiene of the State of New York. Dr. Gordon also bases his opinion, in part, on the opinion of Dr. Shapiro of the Department of Industrial Hygiene who was also called in for consultation. The carrier's medical expert, Dr. Lawrence Cotter, reported and testified that he had reviewed the claimant's hospital records and expressed his opinion that there was nothing in the records to suggest selenium poisoning. His opinion was based upon the fact that there was no liver damage and, in practically all the cases of selenium poisoning he had seen, there had been liver damage and he had never seen such poisoning cause fever (pyrexia), nor had he seen any metal poisoning cause fever. Dr. Gordon admitted in his report that pyrexia was not characteristic of selenium poisoning, but stated the other complaints were all characteristic of such poisoning. Dr. Leonard J. Goldwater, an impartial toxicologist, examined the claimant on February 20, 1964. In his initial report dated February 25, 1964, he expressed the opinion that: "It is unlikely that the acute febrile episode of August 1962 was caused by metal poisoning, but it is not possible to rule out poisoning as having played some role in this case." After a neurological examination made at his request, Dr. Goldwater reported that, in his opinion, the complaints prior to August, 1962 were due to occupational exposure to various mixed dusts and fumes of some or all of the materials present at the claimant's place of work; that the febrile illness of August, 1962 was a virus infection not related to occupational exposure; and that the present complaints could not be explained on the basis of organic lesion of the nervous system and, therefore, are not due to occupational poisoning. In contrast to Dr. Cotter's testimony that no metal poisoning causes fever, it is of significance to note Dr. Goldwater's testimony to the effect that the inhalation of metallic oxide fumes could cause fever. It is not uncommon that medical proof will be contradictory, since medicine is not an exact science. The resolution of conflicting medical opinions testified to by experts is exclusively in the board's domain if its decision is supported by substantial evidence. ( Matter of Palermo v. Gallucci Sons, 5 N.Y.2d 529; Matter of Hassell v. Oxford Filing Supply Co., 16 A.D.2d 534.) Upon the whole record, however, we conclude that the determination of the board is supported by substantial evidence. ( Matter of Ernest v. Boggs Lake Estates, 12 N.Y.2d 414; Matter of Schulman v. 1347 Restaurant Corp., 27 A.D.2d 606.) Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.