Claim of Marino v. Hawkins Auto Sales, Inc.

Appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board. Claimant, a garage mechanic, was injured when a tire he was inflating blew out causing the rim to strike him on the right side of the head. Appellants conceded the occurrence of the accident and that the accident resulted in a 32% loss of hearing in claimant’s right ear. Appellants urge, however, that there is no substantial evidence to support the board’s finding of a 24% binaural loss of hearing. We agree. The report of Dr. Saunders which is the sole evidence in the record attempting to relate the accident to claimant’s left ear defect does not meet the test established in Matter of Miller v. National Cabinet Co. (8 N Y 2d 277). Dr. Saunders’ report states specifically that the question of causal relation here involved cannot be “ answered affirmatively or negatively.” While actual proof is not required to uphold the validity of medical opinion, it is necessary that an opinion be given based upon some degree of medical certainty (Matter of Miller v. National Cabinet Co., supra, p. 284). Decision and award reversed and ease remitted to Workmen’s Compensation Board for further proceedings not inconsistent herewith, with costs to appellants against the Workmen’s Compensation Board. Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.