Opinion
May 1, 1967
Appeal by claimant from a decision of the Workmen's Compensation Board which disallowed her claim for benefits on account of disability following surgery for the repair of a hernia claimed to have been materially enlarged and aggravated when, in the course of her duties as a check-out girl in a supermarket, and while she was engaged in lifting and bagging groceries at a checkout counter, she attempted to assist an elderly lady by picking up the latter's bag, weighing 15 to 20 pounds, and leaned over the check-out counter to place it in the lady's shopping cart, at which time she experienced a sharp pain in her groin and later felt a bulge. Although the pain persisted through the next day she continued at work but on the following day consulted her family physician who found a greatly enlarged hernia and referred her to a hospital for surgical repair thereof. The operation was followed by complications which caused other serious conditions and required a second operation and other operative procedures. The family physician above referred to had examined claimant about five months prior to the incidents that occurred at work and in a portion of an old Caesarean operative scar had found a small hernia, for which he advised no corrective measures "because it was small and asymptomatic [and] didn't bother her" and because of the difficulty of repairing a hernia in the case of a person of her considerable bulk. The doctor testified that the lifting incident occurring at work was the "producing cause" of her ultimate disability, following the various complications and other sequelae of the herniotomy. The operating surgeon also found casual relationship between the lifting incident and the enlarged hernia which he shortly saw and operated; and he testified unequivocally that her subsequent trouble "certainly would be secondary to my hernia repair because she didn't have that trouble before I fixed the hernia." The only other medical evidence was adduced from carrier's medical expert who first said that he "would assume that the normal course of a hernia would be one of slow, gradual, progressive increase in size" (emphasis supplied); but subsequently said that he would not consider claimant's case a "normal" one; and then, while being examined by carrier's counsel and after listening to counsel's description of the incidents occurring at work, as testified to by claimant, said that the sudden, sharp pain was due to a greater protrusion, whereupon carrier's counsel inquired, "And that is an accidental event as you treat it in industrial medicine, is it not?", to which the doctor replied, "This is correct." A bit later he testified just as strongly in further support of causation, saying that "this untoward attitude in putting the bag into the basket of the customer, the combination of even 15 to 20 pounds would be sufficient to alter the existent hernia" and that "this effort, which is adequate to produce tearing of muscle fiber and stretching of an already existing defect — that this was the activity which did alter the pre-existent hernia and produce subjective complaint." Significantly enough, he at no time denied that the severe complications that ensued were related to the hernia repair and he advanced no other explanation for them. In sum then, carrier's only expert, although first stating that the "normal course" of "a" hernia would be one of slow progression to an ultimate disablement, shortly departed from these generalizations and clearly denominated the lifting incident an accidental event which produced the aggravated need for surgical repair which in turn caused the severe consequences ensuing. All of the medical evidence thus affirms the occurrence of an industrial accident severely aggravating a pre-existing minor condition, in the treatment of which were incurred other conditions and disability, all in the same chain of causation. The Referee's award was therefore proper and, indeed, if the lay evidence be credited, no other result could be sustained; and the board's decision would be unsupported by any substantial evidence. (See Matter of Wheeler v. Lynn Shirt Co., 15 A.D.2d 697; Matter of Messer v. Leading Youth Center, 15 A.D.2d 841.) The rule is too long established and too well understood to require discussion beyond its restatement — that disability is compensable when due to a work-connected accident aggravating a pre-existing condition, whether or not of industrial origin, and to the sequelae medically associated with the aggravated condition or its treatment, or with both. Our conclusion with respect to the merits renders consideration of the procedural issue raised by appellant unnecessary. Decision reversed, with costs to claimant, and matter remitted to the Workmen's Compensation Board for reconsideration of its findings or for further proceedings not inconsistent herewith. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gibson, P.J.