Opinion
October 6, 1955.
Appeal from Workmen's Compensation Board.
In 1943 claimant was employed by the appellant hospital as a cook's helper. He was then and for some years before had been suffering from generalized arthritis in all joints. This condition was severe enough to prevent his working over extensive periods of time. His condition was known to his employer. As a result of the condition he did not work from December, 1943, to March, 1946. On January 20, 1947, he fell in the course of employment and suffered a fracture of the neck of the right femur. This fracture has not healed and claimant remains totally disabled. The board has found that the case does not come within subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law and has discharged the Special Fund. We think that the substantial evidence all pointed in a different direction and that there is a permanent disability "caused by both conditions that is materially and substantially greater than that which would have resulted from the subsequent injury". The medical proof points clearly to the fact that the "disability" due to the fracture is materially greater because of the extensive conditions of arthritis in the bones of the hips and legs which preceded the injury. An orthopedic physician expressed the unequivocal view that "The difference between that substantial partial disability and the total disability which he still has is accounted for on the basis of his pre-existing pathology, the arthritis of many years' duration". He concluded that the existing total disability "is contributed to no small degree by pre-existing and unrelated pathology, in the absence of which he would be only partially disabled". No medical proof in the record disputed this. The board physician testified in respect of the contribution of the arthritic condition to the total disability that "undoubtedly it does". He also expressed the view that claimant became totally disabled "as a result of this accident", but when the referee pressed him on that point and asked whether the injuries from "this accident alone" caused the disability, he did not adopt that language and expressed the opinion that his report had been "very carefully worded" and he had limited himself to the expression claimant had been disabled "as a result of this accident". As he concluded his testimony he agreed that the arthritic condition "does contribute in some manner to the permanent total disability". There is a report by another physician expressing the opinion that the arthritis has "not been aggravated by the injury" but that is quite a different matter and does not relate to the question that is important under subdivision 8 of section 15. The medical testimony as a whole as thus far developed in the record cannot be read as offering substantial support to the finding of the board. Decision discharging the Special Fund reversed and the claim remitted to the board for its further consideration, with costs against the Workmen's Compensation Board. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur.