DeNucci v. Navajo Freight Lines, Inc.
| Decision Date | 13 February 1969 |
| Citation | 31 A.D.2d 868,297 N.Y.S.2d 164 |
| Parties | Claim of Albert DeNUCCI, Respondent, v. NAVAJO FREIGHT LINES, INC., et al., Appellants. Workmen's Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Frank Bearup, Albany, for respondent.
Sullivan, Rehfuss & Cunningham, John J. Cunningham, Albany, for appellants.
Louis J. Lefkowitz, Atty. Gen., Daniel Polansky and Morris N. Lissauer, Asst. Attys. Gen., for Workmen's Compensation Bd.
Before GIBSON, P.J., and HERLIHY, REYNOLDS, STALEY and COOKE, JJ.
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed October 11, 1967.
On June 28, 1965 the claimant was employed as a dockman handling freight. At about 10:00 A.M. on that day, the claimant, while attempting to lift a table over a rolled up rug, felt pain in his lower back and down his left leg. The claimant was disabled by these injuries, and compensation awards were made from June 29, 1965 to October 13, 1965 when he returned to work. On April 5, 1966 he was discharged by the employer due to lack of work. He did no work and engaged in no strenuous activity thereafter and, on June 20, 1966, he was examined by Dr. Joseph Steinbock because his back condition had grown worse. The claimant has been unable to work since June 20, 1966 and has continued to complain of pain in the left lower back radiating down the left leg.
The Workmen's Compensation Board determined that the claimant continued to have a causally related partial disability after September 21, 1966 and affirmed the Referee's award. Appellants argue that the medical evidence relied on by the board consists only of a mere possibility of causal relationship and that there is, therefore, no substantial medical evidence to support the determination of the board.
Dr. Steinbock, claimant's witness, submitted a medical report wherein he stated there was causal relationship betweent he accident on June 28, 1965 and the claimant's condition on June 20, 1966. His testimony, however, was far less emphatic by reason of his use of the words 'possibly could be due to that'; 'I cannot say categorically that it was or not'; and 'I cannot eliminate the possibility of this being the cause of it.' In answer to the question of whether claimant's disability was total or partial as related to the accident of June 28, 1965, Dr. Steinbock testified that 'I can't answer that yes or no. I can just say it's possible.' Continuing, he said that in cases where X rays show a pre-existing condition 'I have assumed the injury, the symptoms are due to the injury on a pre-existing condition.' Considering the fact that Dr. Steinbock was aware of the claimant's pre-existing back...
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...nevertheless, the board was free to accept the statement as an opinion supporting causation. (See Matter of De Nucci v. Navajo Freight Lines, Inc., 31 A.D.2d 868, 869, 297 N.Y.S.2d 164, 165.) The claimant in his testimony detailed work activities and the appellants failed to dispute the med......
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...a claim where substantial medical evidence of causal relationship is presented by the whole record.' (Matter of DeNucci v. Navajo Frgt. Lines, Inc., 31 A.D.2d 868, 297 N.Y.S.2d 164.) Here, substantial medical evidence of causal relationship is presented by the whole record, and the determin......
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...was an hypothesis, his testimony, read as a whole, is sufficiently definite to support an award (cf. Matter of De Nucci v. Navajo Frgt. Lines, 31 A.D.2d 868, 297 N.Y.S.2d 164). While the claimant's other expert, Dr. Springer, was initially mistaken as to the facts, upon reviewing the record......