Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
This is an appeal from a decision of the Workmen's Compensation Board which established that decedent sustained an industrial accident and found both disability and death benefits. There was testimony that the decedent, while working on January 22, 1955, picked up a heavy crate and thereafter felt a sharp pain. Later in the morning he left his employment, went home and told his wife of lifting a heavy crate and experiencing pain. He remained at home in bed. On the third day subsequent to the occurrence a doctor was summoned who made a diagnosis of irreducible hernia, had the patient removed to the hospital and performed an operation on the same day. The appellants contend that surgery was required because of acute appendicitis and that the irreducible hernia was caused by the condition of the appendix and was in no way related to the accident. The doctor who performed the operation subsequently testified at a hearing that after administering the anesthesia and following the incision, the hernia reduced itself. He continued the operation by opening the inguinal canal because of the dark, clotted blood and the possibility of strangulation. He also removed the perforated appendix. While in the hospital decedent suffered from a blood clot based upon damage to the abdominal viscera and described by the doctor as a cerebrovascular accident. The decedent was discharged from the hospital on February 28 and shortly thereafter suffered a second cerebrovascular attack and died in about 10 days. The doctor related these attacks to the operation which was necessitated as the result of an accident which caused "Hernia, inguinal, strangulated right." In contrast to the testimony of the operating surgeon who examined the abdominal cavity of the decedent and stated there was a strangulated hernia, the carrier offered the testimony of two physicians who never saw or examined the decedent and who concluded death was not caused by the hernia condition but from acute appendicitis. Their conclusions were based upon reports and records. Besides testimony by the decedent's wife and doctor, the employer's report of injury stated that decedent was a maintenance man and while working, sustained a hernia. While there was a dispute as to the medical testimony and causal relationship, the testimony of the attending surgeon established the necessity of the operation to correct a strangulated hernia; that the cerebrovascular accident resulted from the operation and caused his death, all of which was related to and caused by the original accident. Such testimony was not mere possibility but because of the doctor's participation in the operation was well within the realm of probability and met the test of substantial evidence. ( Matter of Palermo v. Gallucci Sons, 6 A.D.2d 911, affd. 5 N.Y.2d 529.) Decision and award of the Workmen's Compensation Board unanimously affirmed, with costs.