Claim of Nowicki v. Allegheny Ludlum Steel Corp. , 21 A.D.2d 946 ( 1964 )

Reynolds, J.

Appeal by the self-insured employer from a decision and award of benefits by the Workmen’s Compensation Board. The board has found that claimant, a molder for 31 years, 19 years with appellant, is totally disabled as a result of silicosis. Appellant urges that there is no substantial evidence to support the board’s finding of total disability, such evidence indicating rather that claimant was only partially disabled and thus not presently entitled to benefits. While it is true that appellant’s expert and the board’s panel of experts and consultants unanimously found only partial disability, Dr. Ciesla, claimant’s expert, testified to total disability. Appellant’s assertion that Dr. Ciesla’s testimony does not commend “ itself to the reasonable mind in the context of this record ” and that in accepting his testimony and “ arbitrarily ” rejecting that of the other experts “ the Board has made a spurious ‘ choice ’.” Of course the board if it chose, in the exercise of its fact-finding power, could properly accept Dr. Ciesla’s testimony and reject that of the other experts despite their numerical superiority (Matter of Palermo v. Gallucci & Sons, 5 N Y 2d 529). One would expect on this record that the board would have come to a different conclusion, but we cannot say that its finding was not rationally supportable. Dr. Ciesla’s testimony although subject to some inconsistencies and discrepancies had sufficient probative force to constitute substantial evidence upon which the board could base its determination. Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Herlihy, Aulisi and Hamm, JJ., concur.