Claim of Zivitz v. J & S Meat Corp.

Casey and Weiss, JJ.,

dissent and vote to affirm in the following memorandum by Casey, J. Casey, J. (dissenting). Since the record contains the reports of two medical experts concluding that decedent’s work-related heart condition contributed to his death, the contrary evidence in the record created a classic case of conflicting expert medical opinions. Our scope of review of Workers’ Compensation Board decisions does not include the power to substitute our view of the factual merits of a controversy for that of the Board (Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6). The conflicting expert medical evidence merely raised a factual issue for the Board to resolve (Matter of Rodriguez v Continental Steel Corp., 106 AD2d 752, 754; Matter of Adler v Guild Elecs., 97 AD2d 606). In contrast with Matter of Riehl v Town of Amherst (308 NY 212), the testimony of Dr. Martin Fox herein reaffirms the opinion in his report and establishes that his opinion was not *711based on pure speculation. Accordingly, we would affirm the Board’s decision.