Opinion
December 1, 1994
Appeal from the Workers' Compensation Board.
We conclude that there was substantial evidence in the record to support the determination of the Workers' Compensation Board that claimant suffered from total disability and not only marked partial disability, as asserted by the employer and its workers' compensation carrier (see, e.g., Matter of Walker v Twin Indus. Corp., 101 A.D.2d 667). In view of the testimony of Ben Benatar, claimant's treating orthopedist, that claimant had a "total", "extensive" and "real severe" disability and that he knew of no job category in which he could place claimant, the mere fact that claimant was able to walk, drive, sit and stand for short periods of time did not compel a contrary conclusion. The conflicting testimony of the carrier's physician merely created a factual issue for the Board's determination (see, Matter of Boyce v Michelangelo Gen. Contrs., 195 A.D.2d 768; Matter of Baker v Three Vil. Cent. School Dist., 154 A.D.2d 828).
Further, although Benatar repeatedly recommended surgery for claimant (a laminectomy and excision of a herniated disc), he was not at all certain that claimant could be helped. To the contrary, when asked whether the recommended surgery would produce an earning capacity of some type, Benatar's unsure response was, "Potentially, yes, if it works." Under the circumstances, we are not persuaded that claimant's unwillingness to undergo the recommended surgery was unreasonable (see, Matter of Messina v Speranza, 79 A.D.2d 807; Matter of Reitzen v Brooklyn Carpet Exch., 74 A.D.2d 941; cf., Matter of Zanotti v New York Tel. Co., 48 A.D.2d 192).
Mikoll, J.P., Crew III, White and Yesawich Jr., JJ., concur. Ordered that the decision is affirmed, without costs.