Opinion
June 20, 1967
Appeal by the employer and its carrier from a decision and award of death benefits by the Workmen's Compensation Board on the ground that there is no substantial evidence to support the board's findings that decedent's death was causally related to occupational tuberculosis or that claimant, decedent's mother, was dependent upon decedent. The issues of dependency and contributions are questions of fact and thus the board's determination will be disturbed only if there is no substantial evidence to support the board's decision (e.g., Matter of Holloway v. Camp Hatikvah, 14 A.D.2d 638). Here although there is no detailed record of income and expenses, the board could properly find that decedent paid virtually all of the family's expenses and thus that dependency existed. The board was not required to find as appellant contends that decedent merely contributed for her own room and board rather than general family maintenance (cf. Matter of Martorana v. Tensolite Insulated Wire Co., 14 A.D.2d 462; Matter of Carey v. Town of Conklin, 14 A.D.2d 978). On the issue of causal relationship there is no question that decedent died of tuberculosis and there is sufficient medical testimony that decedent could have contracted the disease by exposure to an active case. Clearly then if the record supports the conclusion that decedent contracted tuberculosis as a result of her exposure to a hospital patient suffering therefrom then the board's finding should be upheld (e.g. Matter of Lyden v. United Hosp., 275 App. Div. 877, mot. for lv. to app. den. 275 App. Div. 1005). The problem here is that the only proof presently in the record of any exposure to a tubercular patient comes from an alleged statement by the decedent to her mother, the claimant, that she had been in contact with such a patient. This statement plus that of two of decedent's co-workers that decedent had cared for a patient who exhibited symptoms that could have been similar to those a tubercular patient would exhibit and that the particular patient was indicated as having a contagious illness was found by the board to be sufficient. Appellants, of course, deny any exposure and assert that none of the nine patients reported to have had tuberculosis between January and June, 1960 were in the psychiatric ward where decedent was working. Following several hearings and several reversals of disallowance and remittals by the board, the board finally ordered that the employer submit its records of patients confined to the fifth floor from January 1, 1960 to June 1, 1960 to claimant's attorney for examination. This the employer refused to do on advice of counsel on the grounds that to do so would violate the physician-patient privilege (CPLR 4504, subd. [a]) and subsequently the board determined that causal relationship had been established on the grounds indicated. Under section 118 Work. Comp. of the Workmen's Compensation Law, the declarations of a deceased employee are sufficient to establish accident and injury if corroborated by the circumstances or other evidence. However, here there would appear to be no competent corroboration present. A nurse is not competent to say that a patient had tuberculosis ( Matter of Maher v. St. Mary's Hosp., 3 A.D.2d 875) and the co-workers, in fact, make no such assertion only indicating that there was a patient who displayed symptoms that could have possibly indicated tuberculosis. Respondents, of course, point out that only by examining the records of patients on the fifth floor during the period in question could claimant establish that decedent was exposed to a tubercular patient and this the employer has resisted on the basis of privilege. We fully recognize the legal dilemma presented by the conflicting interests. On the one hand if exposure were present social justice dictates that an award should be available and on the other hand the privilege exists and should be upheld particularly whereas here confidential psychiatric records of patients who are not even directly involved in the proceedings are in question. However, we believe both sets of interests can be adequately accommodated by properly limiting any examination. Claimant wishes to discover if, in fact, decedent was exposed to a tubercular patient on the fifth floor during a specified time involved. This, of course, does not necessitate an examination of all portions of each record but only so much thereof as would reveal any physical ailments suffered by patients on that floor during the period involved. Also it would not even necessitate the revelation of the names of any patient to anyone including claimant's counsel since the establishment of the existence of a medically diagnosd active case during the period is only needed for corroborative purposes. Thus we hold that the employer properly refused to adhere to the board's broad direction but that a limited direction which provides proper safeguards to the patients' privilege would be permissible (see Matter of Hyman v. Jewish Chronic Disease Hosp., 15 N.Y.2d 317, 322). Accordingly, the decision and award should be reversed and the matter remitted for further proceedings in accordance with this decision. Decision reversed, with costs to appellants against the Workmen's Compensation Board, and matter remitted for further proceedings not inconsistent herewith. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Reynolds, J.