Opinion
December 7, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by a self-insured employer from a decision of the Workmen's Compensation Board awarding death benefits to the widow of a deceased employee. Decedent was a laborer. While engaged on May 3, 1951 in a bridge-shoring operation of his employer, he sustained injuries to his left ankle and left chest when struck by falling heavy timbers dislodged by the slipping of a supportive jack. Several days later he detected a black and blue area about his left breast. A subsequently performed biopsy revealed carcinoma infiltrating the surrounding tissues. On July 21, 1951 his attending physician amputed his left breast and removed a cancerous tumor. He returned to work on October 5, 1951. Thereafter, based on a finding that the accident had aggravated the pre-existing tumor, numerous disability awards were made at reduced earnings. Cancerous nodules were removed from the postoperative incision in January, 1955 and again in February, 1956. His case was closed on October 25, 1956 with a schedule award of 45% loss of use of his left arm. His demise on January 14, 1958, according to the death certificate signed by the County Medical Examiner, was due to "metastatic carcinoma of left lung, carcinoma of left breast, traumatic." Decedent's widow's claim for death benefits was disallowed by the Referee upon a finding that the medical evidence was insufficient to establish causal relationship between the accident and the death. The board, one member dissenting, reversed the decision of the Referee stating: "the effects of the injury of May 3, 1951 aggravated a pre-existing cancerous tumor and that such aggravation was a contributing factor in causing decedent's death on January 14, 1958, and we so find." The record contains sharply conflicting medical evidence of considerable volume. Doctor Sanborn who had attended the decedent for his original injuries and who had performed the radical breast amputation testified that "metastases in the lungs were directly the result of the carcinoma of the left breast which was due to the blow." Doctor Benedict who had performed an autopsy stated that "there is causal relationship between the blow on the chest and the eventual death of this patient." Medical experts who testified in appellant's behalf were of the opinion that the trauma to the breast neither caused nor aggravated the malignancy. Essentially, their opinions rested on the medical theories that a single blow would not cause cancer and that the phenomenon of decedent's longevity of about seven years negated the hypothesis that the trauma had accelerative influence on the tumor. The weight of the medical testimony was for the board to evaluate. We find in the record substantial medical evidence to support its finding that the death of the decedent was causally related to the accident. ( Matter of Lefkowitz v. Silverstein, 11 A.D.2d 841; Matter of Smith v. Durham Aircraft Serv., 11 A.D.2d 552; Matter of Kehl v. Smokemasters, Inc., 8 A.D.2d 563; Matter of Schaffer v. S. Klein on the Square, 6 A.D.2d 924, motion for leave to appeal denied 5 N.Y.2d 707; Matter of Morrello v. Kress Co., 6 A.D.2d 929.) Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.