Opinion
November 16, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from a decision and award for disability found to be associated with claimant's activities in the course of a fire in the employer's hotel. The decision, rendered after the report and testimony of an impartial specialist, first recited the board's reference of the matter to the specialist; then stated in some detail the specialist's conclusions that claimant sustained an accident when "subjected to an extremely hazardous trauma when a fire occurred in a hotel where he was employed" and that a subsequent "massive hemorrhage" (of an ulcer), with resultant partial disability, "was the direct result of exposure to intense psychic trauma", and finally stated the board's findings, "on this record as developed" (emphasis supplied), "that accident, notice and causal relationship are established and that the claimant has a partial disability resulting from the accident." Appellants attack the decision as insufficient and improper in form (cf. Workmen's Compensation Law, § 23) but in this case at least it is clear from the context in which the bare conclusory findings of disability, accident and causation appear that such were predicated upon the recited conclusions of the specialists, whereby the record was "developed" and which, by necessary inference, were adopted by the board. We by no means commend the form of decision here employed by the board but in this case, as we have indicated, its basis and intendment are clear, and Matter of De Tura v. Eastern Meat Markets ( 3 A.D.2d 486, appeal dismissed 3 N.Y.2d 921) and Matter of Bosco v. General Elec. Co. ( 3 A.D.2d 781), cited by appellants, are not in point. The specialist reported "tremendous physical trauma, psychic and emotional strain" associated with claimant's operating an elevator for two or three hours "in a smoke filled building under conditions of great tenseness, and danger to his life." Assuming arguendo the accuracy of appellants' contention that only psychic trauma was found by the board, an award so predicated may be sustained. (See Matter of Klimas v. Trans Caribbean Airways, 10 N.Y.2d 209.) Appellants seem to rely on this court's decision in Matter of Chernin v. Progress Serv. Co. ( 9 A.D.2d 170, affd. 9 N.Y.2d 880) but in its affirmance the Court of Appeals said: "We do not decide whether an occurrence arising out of and in the course of employment which causes psychological trauma may in any case be compensable even though there was no physical injury." The decision in Klimas ( supra) followed some weeks later. Thus, in our view, the decision can rest solely upon the finding of psychic trauma causative of physical injury, without regard to the original physical trauma to which the impartial specialist alluded and for which compensation for a few days following the accident was awarded and paid. Appellants' other arguments are directed in large part to factual determinations; but the board was under no compulsion to find incredible the claimant's version of the occurrence which, incidentally, had considerable corroboration, and which became the history accepted by the impartial specialist; nor was it bound to reject this specialist's opinion as against appellants' experts' denial of causal relation, and, for that matter, as against the conclusions of claimant's experts associating the hemorrhage with the ingestion of smoke. The opinion evidence attacked is not, in our view, at all comparable to that criticized in Matter of Miller v. National Cabinet Co. ( 8 N.Y.2d 277), cited by appellants. This was not, as in Miller, the case of a disease of unknown cause but, in the specialist's words, that of a "classical" psychosomatic disease and a "very typical illustration of the psychosomatic factor"; nor was the doctor's conclusion an expression of opinion as to causation generally, not directed to the specific case or founded on a substantial basis, since it represented his careful analysis of claimant's activities and symptoms and rested on his very long and considerable experience in his special field. If there were inaccuracies in the statement of facts accepted or assumed by the impartial specialist in his written report, they must be discounted as neither serious nor material in the light of the testimony subsequently elicited upon his cross-examination, which testimony the board had a right to, and obviously did accept. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.