Malavenda v. New York Telephone Co.

Appeal from a decision of the Workers’ Compensation Board, filed March 15, 1991, as amended by decision filed May 1, 1991. Claimant received periodic breast examinations as a part of the employer’s breast cancer screening program. Claimant subsequently was found to have breast cancer, necessitating surgery. Claimant commenced a medical malpractice action against the employer and certain of its medical staff alleging that her condition was misdiagnosed. The defendants in that action argued that claimant was relegated to recovery of workers’ compensation benefits, and Supreme Court withheld decision pending a determination by the Workers’ Compensation Board as to whether a compensable condition existed. The Board found that claimant’s condition was not work-related and that its worsening was not an accident arising out of and in the course of employment. The employer appeals. We affirm. The record provides substantial evidence that the tests performed upon claimant were part of routine exams which were "not in the course of either treatment or examination for a work-related injury or condition” (Matter of Allen v American Airlines, 78 AD2d 917, 918, lv denied 53 NY2d 605). Further, substantial evidence supports the Board’s finding 963 that the employer’s employees did not engage in active conduct beyond interpreting the exam results or attempt treatment that aggravated the noncompensable condition (see, supra; see also, 2A Larson, Workmen’s Compensation Law § 68.35). Weiss, P. J., Mikoll, Yesawich Jr., Mercure and Crew III, JJ., concur. Ordered that the decision is affirmed, without costs.