Opinion
August 15, 1961
Appeal by the Special Fund for Reopened Cases under section 25-a of the Workmen's Compensation Law from an award of disability benefits from July 8, 1957 to July 6, 1959 at the rate of $32 per week and to continue thereafter at $16 per week. The board attributed one half of the claimant's disability to the accident of January 11, 1949 and the remainder to the accident of July 25, 1951 and accordingly charged one half of the award to appellant and the balance to the insurance carrier of claimant's employer. The latter does not appeal. Claimant was employed as a laborer in the maintenance department of a municipality. He sustained a right inguinal hernia in a ditch-digging industrial accident which occurred on February 15, 1940. Compensation was awarded and the case was closed. It is not disputed that a snow-shoveling industrial accident on January 11, 1949 caused its recurrence. Claimant, however, refused a corrective operation. This claim was closed without payment of compensation since his disability was less than seven days. Prior to the accident of 1940, claimant had had a pre-existing left inguinal hernia which was repaired simultaneously with the causally related hernia on the right side by the performance of bilateral herniaplasty. On July 25, 1951 claimant sustained a third accident while at work on a highway. His employer's report stated his injury to be a "strained groin causing a rupture." His attending physician diagnosed it as a recurrent left inguinal hernia which he repaired on July 26, 1951. An award of compensation was made and the case was closed. Upon the contention that he was suffering from a double hernia which had been caused by the various accidents above referred to, the board on October 18, 1956 granted claimant's application to reopen the claims stemming from the accidents of January 11, 1949 and July 25, 1951. Upon restoration of the case to the calendar, hearings were held at which testimony was adduced in respect to claimant's disability attributable to his respective accidents. The Referee found that claimant had suffered a temporary total disability from September 12, 1956 to July 8, 1957, one half of which was chargeable to the accident of January 11, 1949 and the other half to that of July 25, 1951. The board affirmed the Referee's decision upon a finding "that the evidence shows claimant is totally disabled as result of both accidents." No appeal was taken by the Special Fund or the carrier from this determination of the board. Subsequent additional continuing awards of total and partial disability for the period subsequent to July 8, 1957 were made. Appellant contends that there is no substantial evidence in the record of any disability during the period covered by the award appealed from which is related to the right hernial condition. It appears from the testimony of Doctor Johnson who examined claimant on February 2, 1957 at the request of appellant that he found him to have "bilateral recurrent hernias" and that the "Hernia on the right is not as large as the one on the left, but they are both large recurrences." Interrogated on the subject of the causal relationship between the conditions which he found and the respective accidents, he stated "Any one of the accidents could have produced the hernia or recurrence" and elaborated on his opinion as follows: "I think you would have to assume that with the story that the recurrences occurred after heavy laboring work that the recurrence on the right side has to be attributed to one of those accidents. The recurrence on the left side has to be attributed to the other. He now has bilateral hernias." In a report dated January 15, 1957 Doctor Krakowski, claimant's attending physician, found him to be disabled as the result of a "Direct, bilateral inguinal hernia". Doctor Littna, another of claimant's examining physicians, on April 2, 1957 found "There are two hernias" which could have been produced by lifting and shoveling. Doctor Colfer, a board physician, who examined claimant on July 6, 1959 stated that he complained of pain in both groins and that "both hernias come out at times." He found the hernia on the left side but felt no hernia on the right side. In answer to a question which elicited his opinion whether claimant was disabled "as far as the right inguinal hernia is concerned", he testified "There may be. I did not find it today but I would not say that tomorrow he might come in and have it out. He might have it." The existence of the right inguinal hernia in January, February and April, 1957 is undisputed. It appears that claimant continued to complain of pain in the right groin as late as July 6, 1959 on which date there is medical testimony by the board's examining physician that there might be disability due to the existence of a right inguinal hernia. On the whole record there is substantial evidence to support the board's finding of disability attributable to the accident of 1949. ( Matter of Bellino v. All Rite Belt Co., 9 A.D.2d 804.) Award affirmed, with costs to the Workmen's Compensation Board. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.