78 A.D.2d 917 | N.Y. App. Div. | 1980
Appeal by the claimant from a decision of the Workers’ Compensation Board, filed April 25, 1979, which affirmed a referee’s decision disallowing the claim. The decedent, Robert Allen, was a copilot in the employ of American Airlines. On October 20,1971, in the course of a company required annual physical exam, decedent’s chest was Xrayed. The examining physician, who was also in the employ of American Airlines, interpreted the X ray as being within normal limits. On January 22, 1972, decedent was examined by his private physician. X rays taken at that time revealed the presence of a mass in the chest area. Shortly thereafter surgery was performed for the removal of a tumor designated a malignant carcinoma. On April 10,1972 decedent was examined and cleared for flight duty by American Airlines. He expired on June 14, 1972 of a malignant teratomatosis. Dr. Rapaport, a radiologist, testified that the X rays taken on October 20,1971 and those taken on January 22, 1972 were virtually carbon copies. Dr. Rapaport testified that the failure to observe the mass in the earlier X ray fell below the level of accepted standards of practice. The board ruled that “based on Dr. Econ’s testimony * * * claimant sustained neither an accident or occupational disease within the meaning of the Workers’ Compensation Law.” Appellant contends that the failure to properly interpret the X ray constituted an industrial accident. We disagree. The decision of the board is supported by substantial evidence and should be affirmed. Appellant’s reliance on Golini v Nachtigall (38 NY2d 745), Garcia v Iserson (33 NY2d 421) and Schulz u Wyckoff Hgts. Hosp. (51 AD2d 1026) is misplaced. In each of these cases, treatment was rendered for a
