
    In the Matter of the Claim of Rose Palermo, Respondent, against Samuel Gallucci & Sons, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued January 6, 1959;
    decided April 16, 1959.
    
      Ralph S. Stowell and Joseph D. Edivards for appellants.
    Substantial and probative evidence does not support the finding of the Workmen’s Compensation Board of causally related death upon which the awards herein were predicated. (Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Strohm v. New York, L. E. & W. R. R. Co., 96 N. Y. 305; Briggs v. New York Cent. & H. R. R. R. Co., 177 N. Y. 59; Matter of Riehl v. Town of Amherst, 308 N. Y. 212; Matter of Du Cennois v. Daisy Dairy, 286 App. Div. 923.)
    
      
      Louis J. Lefkowitz, Attorney-General (Daniel Polansky, Paxton Blair and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    Substantial evidence supported the finding of the Workmen’s Compensation Board that decedent’s death was causally related to his accident of July 1, 1954. (Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Suschinski v. Allegheny Ludlum Steel Corp., 5 A D 2d 903, 4 N Y 2d 677; Matter of Boltrak v. Mike Schechter, Inc., 5 A D 2d 725; Matter of Wachsstock v. Skyview Transp. Co., 5 A D 2d 1028; Matter of Mathiez v. Meyer, 6 A D 2d 741, 5 N Y 2d 705 ; Matter of Green v. Geiger, 253 App. Div. 469; Matter of Zaepfel v. du Pont de Nemours & Co., 284 App. Div. 693, 309 N. Y. 962; Matter of Malgieri v. General Elec. Co., 258 N. Y. 620; Matter of Ruzsjak v. Metal Stamping Co., 259 N. Y. 575; Matter of Roblee v. New York Tel. Co., 235 App. Div. 754; Matter of Peirano v. Brooks Transp. Co., 1 A D 2d 713, 309 N. Y. 1034.)
    
      Abraham Markhoff for claimant-respondent.
   Chief Judge Conway.

The Workmen’s Compensation Board (hereinafter referred to as the Board) has made an award to the claimant widow of one Anthony Palermo. Mr. Palermo suffered a fatal coronary attack on July 31, 1954 which the Board found was causally related to injuries he sustained in an auto collision on July 1, 1954 during the course of his employment. The question presented for our decision is whether there is substantial evidence to support that finding.

On July 1, 1954 Mr. Palermo was operating his employer’s truck when it was struck by a United States mail truck. The impact caused him to be thrown to the pavement and he was unconscious for several minutes. He was taken to a hospital where his injuries were diagnosed as contusion of the right elbow and abrasion of the scalp in the frontal and occipital region. X-ray of the skull failed to disclose any evidence of fracture of the cranial vault, and there was no sign of intracranial pathology. Mr. Palermo was referred to his own physician. On the next day he consulted Dr. Arnold Nathan who made a diagnosis of contusion and abrasion of the right forehead, swelling and abrasion of the right posterior vertex, abrasion of the right hypochondrium (described by Dr. Nathan as the right lower chest), and tenderness and stiffness of the right shoulder. Iu a report of July 6, 1954 Dr. Nathan noted: “ Cerebral concussion ”. Mr. Palermo made no complaints of a cardiac nature, and Dr. Nathan found no evidence of any cardiac ailment. Mr. Palermo returned to work on July 12th and continued to do his regular work until his death on July 31st. It was at 3:10 a.m. of that day when Dr. Polikronas Kusa was called to the Palermo home. Mr. Palermo was acutely ill and was suffering from severe chest pains which Dr. Kusa characterized as precordial pain. After the doctor administered morphine Mr. Palermo was rushed to the hospital where he died at 4:10 a.m. The death certificate shows the cause of death to be coronary occlusion and coronary thrombosis.

An autopsy was performed at the hospital by a Dr. Frederick Weinberg’, a pathologist, at the direction of the Coroner, Dr. P. Jerome Laviano. The autopsy report contained, among other things, a description of the heart, arteries, and the thrombus. In addition, Dr. Laviano requested Dr. Weinberg to perform a microscopic examination, the report of which also contains certain information about the condition of the heart and arteries. Dr. Laviano did not participate in these procedures, but he examined the reports and discussed them with Dr. Weinberg.

At the hearing, Dr. Laviano testified for the employer and Dr. Nathan testified in behalf of the widow. Their opinions were conflicting. Dr. Laviano testified there was no doubt that the heart and other contents of the chest cavity were shaken up by the accident on July 1st. However, he was of the opinion that the condition of the heart, arteries and thrombus as disclosed upon the autopsy and microscopic examination was such that the thrombus could not have been formed more than two weeks before the fatal attack. He said: “ * * * I feel then

that this thrombus was not due to the accident but was something that developed later.” Dr. Nathan, on the other hand, testified that the force of the blow sustained by Mr. Palermo when he was thrown from his truck may well have produced heart injury. He explained: This then results in a reaction where we have the production of or clotting of blood within the vessel wall at the site of the injury. And we have the resultant coronary occlusion.” We agree with the majority of the Appellate Division that Dr. Nathan’s testimony, together with the other evidence in the case, satisfies the requirement that there be substantial evidence underlying the determination of the Board.

It is impossible to reject as insufficient in law the testimony of Dr. Nathan. There can be no doubt of the fact that his opinion was in favor of causal relation whether or not one agrees with it. It was not empty speculation, nor was it a mere general medical lecture. The hypothetical question posed to him contained all of the salient facts of the case, and his opinion was directed to those facts. The record emphatically establishes that in forming his opinion Dr. Nathan considered both the autopsy and microscopic findings. This is not a case where a doctor gives an opinion upon a state of facts not established in the record, and against which there is contrary and overwhelming evidence and opinion. (See Matter of McCormack v. National City Bank, 303 N. Y. 5.) Here there is uncontroverted proof that Mr. Palermo suffered injuries as a result of being thrown from his truck.

Dr. Laviano testified that the autopsy and microscopic findings were in no event susceptible of the conclusion that the accident could have precipitated the fatal coronary. That, of course, was only his opinion—his interpretation of the findings. It would be a gross inaccuracy to attribute to Dr. Laviano’s opinion the character of incontrovertibility. True, the facts upon which his opinion was based, viz., the autopsy report and microscopic findings, were undisputed, but that is all. There is nothing uncontrovertible about Dr. Laviano’s conclusion from those facts. It was both controvertible, and controverted. It may not be said that there was no issue of fact, or no evidence to support the conclusion of causal relation. Dr. Nathan’s opinion was directly contrary to Dr. Laviano’s, and it was based also upon the autopsy report and microscopic findings. Moreover, Dr. Nathan had personally examined Mr. Palermo after the accident. Dr. Laviano had not. It may also be observed that Dr. Nathan was a specialist in cardiology whereas Dr. Laviano" was not.

In sum, therefore, there are in this case two conflicting expert opinions each one based upon the same facts. The selection of either is an exercise of fact-finding power which is entirely within the province of the Board and outside the limited jurisdiction of this CQprt, It is not our function to render a decision upon the basis of which expert opinion we deem is more weighty or persuasive. The testimony of each expert was sufficiently direct and specific to create an issue of fact and to warrant a finding either for or against causal relation. That issue has been resolved by the appropriate body—the Board—in favor of the claimant widow, and the record leaves us no course but to affirm.

The order of the Appellate Division should be affirmed, with costs.

Van Voorhis, J. (dissenting).

On July 1,1954 the decedent, Anthony Palermo, was involved in an automobile accident while driving a truck for his employer, appellant Samuel Gallucci & Sons, Inc. In order to sustain the award, it is conceded that the onset of the coronary attack from which he died a month later must have set in at the time of this accident. He was thrown from the cab of his truck to the street, and taken to a hospital where the diagnosis was made of contusion of the right elbow and abrasion of the scalp in the frontal and occipital region. X-ray examination of the skull failed to disclose any evidence of fracture, and there was no sign of intracranial pathology. He was referred to his own physician. On the next day (July 2), he called at the office of a Dr. Arnold Nathan—on whose testimony claimant’s recovery depends—who discovered nothing at that time of any cardiac ailment, but made a diagnosis of contusion and abrasion of the right forehead, swelling and abrasion of the right posterior vertex, abrasion of the right lower chest and tenderness and stiffness of the right shoulder. In his report of July 6,1954, under the heading of nature and extent of injury”, this doctor noted: Cerebral concussion”. Mr. Palermo returned to work as chauffeur on July 12,1954 and continued until July 31, 1954. Dr. Nathan did not see Mr. Palermo after July 2 until July 22, when he came to the doctor’s office with the complaint that he had been hard of hearing in one ear since the accident. He made no complaints about his chest or his heart at that time. Near the end of July Mr. Palermo drove to his summer home at Rocky Point, Long Island. At 3:10 a.m. on July 31, 1954, Dr. Polikronas Kusa was called to the Palermo home in Rocky Point, where he found Mr. Palermo acutely ill, complaining of severe chest pain, short of breath and restless. Dr. Kusa received a history that he had not had a pain of this kind before. Dr. Knsa described this as severe precordial pain. After being administered morphine, Mr. Palermo was taken by auto to a hospital in Port Jefferson, Long Island, where he died at 4:10 a.m., about an hour after Dr. Kusa had been summoned to see him. The death certificate stated coronary occlusion and coronary thrombosis as the cause of death, stating that there was an interval of about one hour between the onset of the coronary and death.

An autopsy was performed under the supervision of the Suffolk County Coroner, Dr. P. Jerome Laviano, by Dr, Frederick Weinberg who is the pathologist of the John T, Mather Memorial Hospital at Port Jefferson. Dr. Laviano testified, from a study of what was revealed by the autopsy, that the decedent’s heart showed slowly progressive degeneration. The fatal thrombosis or blood clot was disclosed by the incision to be relatively fresh as indicated by its reddish color. “ We could place the time as possibly two or three days, maybe one week, but certainly not longer than two weeks, definitely not longer than two weeks. This is indicated by the materials that form that thrombus while a person is alive and by the retention particularly of the color which at first is quite red, but, with the passage of the time, changes, and this particular thrombus was reddish-brown. It was predominantly red showing that a short time had elapsed. In view of the fact that the accident was one month prior to the death and that a careful and broad analysis of the microscopic findings would not permit more than two weeks, considering all conditions, I feel then that this thrombus was not due to the accident but was something that developed later.” So testified the Coroner, who added that although the heart and other contents of the chest cavity were shaken up in his fall from the truck on July 1, the autopsy gave no evidence of a contusion or hemorrhage to the heart or coronary vessels.

Against these autopsy findings of facts which are not and cannot be disputed, made by disinterested witnesses whose factual testimony is conclusive in the absence of contradiction (Hull v. Littauer, 162 N. Y. 569, 572; Second Nat. Bank v. Weston, 172 N. Y. 250, 258), the only testimony of' causation adduced to support the claim is by Dr. Nathan who, it will be recalled, professed no inkling that any cardiac trouble was involved when he examined Mr. Palermo at his office on July 2 or July 22, 1954, three weeks after the automobile accident had occurred. Dr. Nathan did not venture to go farther than to testify that there was a chance that the trauma on July 1 produced heart injury, and his reasons for this alleged possibility are wholly speculative. His reasoning, unrelated to physical findings of what actually happened to this man, was that hitting the pavement when thrown from a truck produces a sudden compression in the chest and a sudden rise in the chest cavity pressure. This was stated to produce “a contrecoup force” pressing the heart up against the chest wall. He said: The impact there will easily injure the vessels which are on the surface of the heart. Coronaries lie close to the surface and produce an injury to the artery, particularly if it is sclerotic, as this one was. This then results in a reaction where we have the production of or clotting of blood within the vessel wall at the site of the injury. And we have the resultant coronary occlusion. ’ ’

He declined to testify in answer to a question by claimant’s counsel that he believed with reasonable certainty that these sequences of events took place in Mr. Palermo’s case, merely that there is a chance that they might have done so. Medical opinion evidence has no greater probative force than the grounds on which the testimony shows that it is based. It must be viewed in the light of the record as a whole, and evidence which unexplained might be conclusive may lose all probative force when supplemented and explained by other testimony (Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65, 71; Matter of Riehl v. Town of Amherst, 308 N. Y. 212, 215-216). A question of fact is not presented, in our view, between the testimony of Dr. Nathan and the Coroner, Dr. Laviano. The Coroner was testifying to incontrovertible facts as disclosed by the autopsy. Dr. Nathan, who had not the slightest idea when he examined Palermo on July 22 that the onset of a coronary attack had set in three weeks before, was speculating on what might have happened if the event had occurred differently from the manner in which the evidence established that it did. His testimony does not purport to have been directed at the condition of this decedent, Anthony Palermo. He gave a general lecture. When confronted with the facts of this ease in examining the slides made by the autopsy, the most that he was able to say was that in his opinion the onset of this coronary was more than 48 hours prior to his death on July 31.

This is too heavy a load for section 21 of the Workmen’s Compensation Law to bear. The presumption provided by this section “ ‘ cannot be used as a substitute for actual proof ’ ” (Matter of McCormack v. National City Bank, 303 N. Y. 5, 11, quoting Matter of Wilson v. General Motors Corp., 298 N. Y. 468, 472). “The doctor’s surmise of what might have been, may not be regarded as substantial ”. (Matter of McCormack v. National City Bank, supra, p. 9.) “ The substantial evidence in this record is against causal relation ’ ’ as the Compensation Referee stated.

The order of the Appellate Division should be reversed and the claim dismissed.

Judges Desmond, Dye and Froessel concur with Chief Judge Conway; Judge Van Voorhis dissents in an opinion in which Judges Fuld and Burke concur.

Order affirmed.  