Opinion
June 29, 1961
Appeal by an employer and its insurance carrier from a decision and award of the Workmen's Compensation Board for death benefits, relating decedent's death from cancer on May 18, 1958 to an accident on March 9, 1956 found to have caused a traumatic pneumothorax of the left lung and aggravation of a pre-existing emphysema, which rendered inadvisable an operation for removal of a cancer of the right lung which was discovered in June, 1957, and which subsequently metastasized to cause death; there being medical opinion that, absent the accidentally caused or aggravated condition in the left lung, such an operation would have been performed and would have prolonged decedent's life. Appellants' arguments are addressed to factual issues which the board has, in our view, resolved upon substantial medical evidence. Thus, appellants contend on the basis of expert testimony produced by them that metastasis had commenced at the time the carcinoma was discovered or a few days thereafter and had so far progressed as to render impossible any operative cure; but the specialist who examined and treated decedent for a long period before and after the discovery of the original tumor reported that at that time there was "absolutely no evidence of metastasis"; the specialist who testified for claimant said that the lesion so discovered was an early one and that decedent "didn't have any spread; and this was discussed at the time"; and one of appellants' experts agreed with the cross-examiner that the cancer was at "quite an early stage" and that, "everything else being equal, the accepted procedure is operation". Appellants adduced other testimony to the effect that oat-cell carcinoma — the type from which decedent suffered — should never be operated upon; but this view seems at variance with the opinion, above noted, of another expert called by appellants and with his further statement that an oat-cell carcinoma "can be" operable; and, of course, claimant's experts were definitely of opinion contrary to that for which appellants contend. Appellants dispute, also, claimant's expert's assumption of no more than a "mild" emphysema prior to the accident and assert that the pre-existing emphysema was so severe as to have precluded surgical procedure had the carcinoma developed before the accident. The board was, however, entitled to accept the contrary evidence, which included expert testimony based on adequate medical history and fortified, in one expert's view, by the facts of decedent's good work record, termed "unusual" by the employer, prior to the accident and his continued and progressively worsened disability thereafter. Another specialist who treated decedent reported: "The effect of the accident was of such aggravating nature, superimposed upon the non-disabling pathology which pre-existed the accident, to totally disable him to the time of his death. The effects of the accident were contributory to make an operation impossible on the opposite lung where the malignancy appeared." Additionally, the physician who attended decedent both before and after the accident said that prior thereto "the condition of his left lung was such that it would have enabled him to survive and live following the removal of his right lung". Specifically, claimant's expert testified that except for the changes in the left lung attributed by him to the accident, he would have advised operation; that if decedent "had not had the complications following the post-traumatic pneumothorax * * * he had a reasonable chance to survive surgery", and "assuming * * * that we could have operated on him * * * his life could have been prolonged." The chain of causation here is fully as strong as the connection which this court found between an operation for an accidentally caused hernia and death from delirium tremens due to sedation following the surgery and to the effects of the surgery itself, since the initial incident "set in motion a sequence of events resulting in a hastened and premature death from delirium tremens." ( Matter of Nichols v. Colonial Beacon Oil Co., 284 App. Div. 581, 586, citing McCahill v. New York Transp. Co., 201 N.Y. 221.) In that case as in this, death from a disease originating independently of the industrial accident in issue was hastened as the result of a condition which did develop from the accident and absent which life would have been prolonged. (Cf. Restatement, Torts, §§ 458-460.) Perhaps an even closer analogy exists between this case, in which a single lung, diseased as the result of accident, would not have been sufficient to sustain life upon removal of the other and the recent case in which a defective leg resulting from accident was inadequate to afford physical support sufficient to prevent a second and fatal accident. ( Matter of Cresci v. Krasilousky Trucking Co., 5 A.D.2d 569, motion for leave to appeal denied 4 N.Y.2d 677.) Decision and award affirmed, with one bill of costs to respondents filing briefs. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.