Claim of Del Sole
v.
Sandy Hill Iron & Brass Works

Appellate Division of the Supreme Court of New York, Third DepartmentJun 19, 1967
28 A.D.2d 760 (N.Y. App. Div. 1967)

June 19, 1967


Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board which determined that the claimant's loss of vision is causally related to his accidental injury. On September 20, 1962, the claimant, while in the course of his employment as a foreman of grinders, was looking into an eight foot steel pipe checking for burrs, when a co-worker blew air through it under 90 pounds pressure causing dust and other foreign bodies to strike his right eye causing abrasions of the cornea. He received medical attention the following day at which time he was treated for an abrasion of the eye. No internal examination of the eye was made at that time. On September 28, he returned for further treatment upon a complaint that he could not see and related this condition back to September 23. At this time, an examination of the interior of the eye revealed hemorrhage in the macular area. It is undisputed that this condition has caused a 100% loss of vision in the claimant's right eye. The only issue is whether there is substantial medical evidence to support the conclusion that the hemorrhage in the macular area of the eye, and resulting loss of vision are causally related to the accident of September 20, 1962. Dr. Ryan, the claimant's attending physician, reported and testified that the accident did not cause the hemorrhage. Dr. Cetner, who was called in as a consultant by Dr. Ryan, examined the claimant on November 2, 1962 and stated in a report dated November 5, 1962 that "The right eye suffered a sufficient contusive blow to produce Berlin's edema or Commotio Retinae * * * resulting in permanent industrial blindness of that eye." This conclusion was based on the history given by the claimant that "while looking into a pipe at work a blast of compressed air in the pipe struck him in the right eye." Claimant testified that his eye was some inches away from the pipe when the accident occurred. A posed photograph was identified by the claimant and admitted into evidence purporting to show the position of claimant in relation to the pipe at the time of the accident. After viewing the photograph, Dr. Cetner submitted a second report dated November 11, 1962 in which he stated: "Judging from the photograph of simulated conditions under which the alleged accident occurred it is very doubtful although not impossible that the blast of air could have had sufficient force and impact on the eye (partially protected by safety glasses) to produce the condition of Berlin's edema described in my report of November 2, 1962. In the realm of conjecture it is remotely possible that the blast of air impinging on the area around the eye (the brow, temple and cheek) could have been sufficiently concussive to provoke a congestion of blood vessels of the eye leading to vascular changes in the retina to produce a picture simulating Berlin's edema. Furthermore, it is entirely possible that the accident of September 20, 1962 had nothing whatever to do with the retinal edema and hemorrhage * * *. There is no sure way of knowing the true causal relationship in this case." Dr. Cetner also testified the condition of the claimant's eye was an example of vascular degeneration of the macular area occurring spontaneously in the claimant, and that the blast of air he received at the time of the accident was not related to the pathology that was visible in the fundi of the right eye. Medical opinion "lacks probative force where the conclusions are `contingent, speculative, or merely possible'", and does not rise to the level of substantial evidence. ( Matter of Riehl v. Town of Amherst, 308 N.Y. 212, 216.) Taking the record as a whole, the board's finding that the claimant's loss of vision was causally related to his accidental injury is not supported by substantial medical evidence. ( Matter of Burris v. Lewis, 2 N.Y.2d 323; Matter of Falconer v. Proto Tool Co., 19 A.D.2d 926.) Decision reversed and claim dismissed, with costs to appellants against the Workmen's Compensation Board. Herlihy, J.P., Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.