Claim of Zanotti v. New York Telephone Co.

Sweeney, J. (dissenting).

Since we are unable to agree with the majority that the record lacks substantial evidence to sustain the board’s determination that claimant’s refusal to undergo a myelogram was reasonable, we dissent and vote to affirm.

Claimant testified that the reason she refused surgery was due to fear that she might end up in a wheelchair for the rest of her life; that someone in her family was in a wheelchair as a result of a back operation. As for the refusal to permit a myelogram, it is reasonable to infer from the record that it would serve no useful purpose because claimant testified that she would not submit to back surgery, the real basis of her fear. While normal fear of the surgery may not justify refusal of required medical treatment (Matter of Ciccone v National Accessories Stores, 46 AD2d 710, 711), whether or not an *195individual’s refusal to submit to medical treatment is reasonable is a question of fact for the board to determine.

The fact that claimant’s fear was based on an awareness that a relative was confined to a wheelchair because of back surgery constitutes, in our view, substantial evidence to justify the board’s conclusion that claimant’s refusal was reasonable. Consequently, we should not disturb that determination. (Matter of Ciccone v National Accessories Stores, supra.)

Greenblott and Kane, JJ., concur with Reynolds, J.; Herlihy, P. J., and Sweeney, J., dissent and vote to affirm in an opinion by Sweeney, J.

Decision reversed, and matter remitted for further proceedings not inconsistent herewith, with costs to appellant against the Workmen’s Compensation Board.