Claim of Burroughs v. Goshen Public School ( 1983 )

— Appeal from a decision of the Workers’ Compensation Board, filed November 24,1982. Claimant, an industrial arts teacher, sustained a compensable injury to his left eye on June 22,1976 when he was hit by a softball. This injury, diagnosed as a traumatic cataract, rendered claimant industrially blind in his left eye. In 1978, claimant was given a 100% schedule award for loss of use of the left eye. The carrier appealed to the board, contending that the award was premature as claimant’s vision might be capable of improvement through surgery. In due course, the board rescinded the award, ordered that claimant be examined by an impartial specialist and restored the case to the Trial Calendar. After hearing testimony from claimant and three ophthalmologists the administrative law judge reinstated the prior award. Upon the carrier’s appeal, the board unanimously affirmed the administrative law judge’s determination, concluding that claimant’s refusal to undergo eye surgery because of problems which could ensue was reasonable. This appeal by the carrier and employer ensued. In their sole argument upon appeal, the employer and carrier contend that claimant’s refusal to undergo surgery is unreasonable as a matter of law. In this regard, it is well established that the board’s determination as to the reasonableness of claimant’s refusal to undergo surgery is a factual finding and, accordingly, if the finding is supported by substantial evidence in the record, it cannot be disturbed by this court (Matter of Messina v Speranza, 79 AD2d 807). A review of the record indicates that the board’s determination is supported by substantial evidence. The decision must, therefore, be affirmed. Decision affirmed, with costs to the Workers’ Compensation Board. Mahoney, P. J., Sweeney, Kane, Mikoll and Levine, JJ., concur.