Opinion
September 28, 1949.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ.
Appeal by an employer and its insurance carrier from an award of disability compensation. The board has found claimant to be totally disabled. Claimant suffered an industrial accident which resulted, among other injuries, in a herniation of the intervertebral disc at the level of the cervical six and seven. Appellants failed to appeal from an earlier decision which determined that the claimant's refusal to undergo an operation was not unreasonable, and we think they thereby lost their right to review such issue on this appeal because no new factors or change of conditions have been shown. But, assuming to the contrary, we think the award as made by the board must be affirmed nevertheless. Only a question of fact is involved and the evidence indicates that the operation proposed is a serious one which requires the exposure of the spinal cord. While the mortality rate incident to such an operation is said to be only 2%, it also appears that the possibility of relief amounts only to about 57%. Under all the circumstances disclosed it cannot be said as a matter of law that claimant's refusal to submit to the operation is arbitrary and unreasonable. Award affirmed, with one bill of costs to be divided equally between claimant-respondent and the Workmen's Compensation Board, and disbursements to each.