Opinion
October 31, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by the claimant from a decision of the Workmen's Compensation Board holding that claimant had no disability causally related to an accident occurring on March 13, 1950. On March 13, 1950 claimant purportedly injured his back while removing clinkers from a boiler. Claimant sought immediate medical aid from a Dr. Humbert who treated him until March 20, 1950. Claimant continued at his regular job until April or May, 1950 when purportedly his back became worse and he left employment. After being discharged by Dr. Humbert, claimant consulted a number of other physicians concerning his back. Subsequently hearings were held at which conflicting evidence was introduced on the question of causal relation. Dr. Neptune, one of claimant's experts, found a herniated disc which he attributed to the accident of March 13, 1950. Dr. Ecker, an impartial specialist to whom claimant was referred, testified that while claimant was suffering pain there was no evidence of any organic disorder of the nervous system. He instead opined that claimant's difficulty was a psychosomatic muscle spasm arising from anxiety and deepseated worry. Respondents in addition produced motion pictures which showed claimant engaged in activities such as painting, applying roofing, carrying materials and repairing chimneys. Thus we find that the record creates a factual question on the issue of causal relation the determination of which is solely within the province of the board ( Matter of Palermo v. Gallucci Sons, 5 N.Y.2d 529). The fact that respondents did not take an appeal from the Referee's decision of October 4, 1954 finding causal relationship is of no import (Workmen's Compensation Law, §§ 22, 123; see, also, Matter of Stengel v. Great Atlantic Pacific Tea Co., 14 A.D.2d 949; Matter of Barnes v. N.Y. World's Fair 1939, 277 App. Div. 819). Decision unanimously affirmed, without costs.