Claim of McNeil v. Orchard Lake Lodge

Appeal from a decision of the Workmen’s Compensation Board, filed February 14, 1974. Claimant’s deceased husband sustained a severe work-related head injury on May 9, 1967 necessitating three separate surgical procedures involving the brain and skull. He died on April 11, 1969 in a hospital emergency room as a result of an epileptic seizure. He suffered from these seizures intermittently after the injury of May 9, 1967, but it 1077 also appears that he had sustained a concussion of the brain in a 1960 automobile accident which produced similar epileptic occurrences. The sole question on this appeal is whether substantial evidence supports the board’s finding of death causally related to the accidental injury of May 9, 1967. This, in turn, depends upon a factual determination of whether the seizures subsequent to May 9, 1967 were more frequent than those before that date because all medical witnesses indicated that resolution of that question would be determinative of the causal nexus, if any, between death and the work-related accident. While the issue is close, an examination of the autopsy report, the testimony of decedent at hearings prior to his death, and the report of the board physician, when coupled with evidence culled from the testimony of other medical witnesses, provides the necessary quantum of proof (Matter of Zaepfel v du Pont de Nemours & Co., 284 App Div 693, affd 309 NY 962). Decision affirmed, with costs to the Workmen’s Compensation Board. Koreman, P. J., Greenblott, Sweeney, Kane and Mahoney, JJ., concur.