MATTER OF BYE v. STATE INSURANCE FUND

The deceased was employed as a general mechanic and handy man by the State Insurance Fund. The Workmen's Compensation Board has found that about September 7, 1948, the deceased employee suffered an injury due to the strain of lifting a seventy-five-pound metal locker. The claim for compensation, however, states that decedent "felt a draft" while working and sustained pains in his back. The decedent himself stated in a letter, September 22, 1948, to the employer that while working he felt a draft on his back from the windows and fan and suffered a stiffness and a spasm of coughing. There is proof of other statements by decedent he had felt pain coughing. In October decedent underwent an operation on the lung which revealed a cancer of the lung. He died October 30th. An autopsy revealed an extensively developed cancer of the lung involving wide areas of the pleural cavity. A physician in the medical examiner's office of the City of New York who had performed about 12,000 autopsies was present and testified that the spread of carcinoma in the pleural cavity was one of the most severe he had ever seen. There is some opinion evidence that due to the existence of the carcinoma the lifting of a metal locker in the month previous to decedent's death could have caused bleeding in the pleural cavity which could have had some relationship to the time of decedent's death; but this physician also testified that the carcinoma was such that the bleeding could occur with no exertion at all. There is no proof that any injury of the kind described could have caused the cancer or affected its development and all the medical proof is that it could not. The medical opinion expressed in the record is that a lifting or strain of the kind, and at the time, described could have no possible effect on cancerous development of the magnitude shown on autopsy, and in the light of the record as a whole we do not regard as substantial evidence the equivocal medical opinion on which the award is based. ( Matter of McCormack v. National City Bank, 303 N.Y. 5.) Decision and award reversed, on the law, and claim dismissed, with costs to appellant. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.