Opinion
November 3, 1967
Appeal by the employer and its insurance carrier from decisions of the Workmen's Compensation Board which determined that claimant's neurological disorder was causally related to her accident. Claimant, a shoe sales clerk, aged 48, fell down a flight of stairs at work on March 6, 1963, and fractured her left shoulder. Several days after the accident, she noted some back pain and weakness and loss of power in her left leg which caused buckling at the knee and difficulty in walking. The appellants did not contest responsibility for the shoulder injury, but did contest the award made for the neurological condition contending that there is no causal relationship between the neurological disorder and the accident. Dr. Kozinn, claimant's physician, reported that he examined claimant on April 4, 1963 and observed that the left leg was colder below the knee than the right, and that claimant complained that, since the time of the injury, her left leg was giving way. Dr. Kramer, a neurologist, in a report dated May 28, 1963, stated "patient has a myelopathy. The exact level is difficult to ascertain, but is mid-thoracic. There may also be an involvement lower down, above T 12. * * * The etiology is probably post-traumatic. There is no previous history of similar complaints." Dr. Lurie, claimant's physician, reported on June 8, 1963 that claimant's present condition was loss of power of her left leg, and that the accident was a competent producing cause of the condition which he found. The report of Dr. Cohen, a neurologist, dated June 27, 1963, stated "My impression is that the patient has a hematomyelia secondary to the cord concussion as a result of her fall." Dr. Cohen, after learning that claimant's myelogram was negative for any pathology of the spinal cord, reported that it was his impression that claimant had a demyelinating disease which was not related to her accident. Dr. Eckhardt, the employer's specialist, reported on October 1, 1964 that claimant's "true diagnosis will probably become apparent only with the passage of further time and further observation of the patient" and stated that it was his opinion that whatever the pathological process might be, it is unrelated to the accident. He later testified that his report included his opinion in the case. The impartial specialist, Dr. Nathanson, reported on February 18, 1965 and testified on May 13, 1965 that the spinal cord disorder was of undetermined etiology and, whether or not it was the result of trauma or an underlying degenerative disorder of the nervous system was unclear, and further stated that the only facts available to him revealed "an association in time of the fall and the appearance of symptoms." The quoted statement of Dr. Nathanson, upon which the board places great weight on this appeal, could be nothing more than a report of an observable fact since he never gave any opinion with reasonable medical certainty that such observation led him to a conclusion of causal relationship. Although the case contains abundant medical evidence, mostly in the form of medical reports, there is lacking any qualified opinion testimony as to the exact cause of claimant's neurological condition. Any report evidence of causal relationship in the reports filed by claimant's doctors must be deemed overcome by the testimony of Dr. Eckhardt who reiterated his opinion that the claimant's neurological condition was not related to the accident. ( Matter of Bochkarev v. Henry's Landscaping Serv., 10 A.D.2d 398.) The board's determination of causal relationship is unsupported by substantial evidence. Decisions reversed, with costs to appellants against the Workmen's Compensation Board, and matter remitted for further proceedings not inconsistent herewith. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.