Opinion
July 7, 1964
The self-insured employer appeals from a unanimous board affirmance of a Referee's decision awarding compensation to the claimant. The employer contends that the board's decision was "an alternative finding", that the evidence does not support finding either of industrial accident or occupational disease, that it also does not support a finding "that the claimant's present condition is an aggravation of the pre-existing accident" and further contends that the claimant has unreasonably refused to submit to surgery. The board stated: "On review we find that claimant's injury was due to the nature of her employment." On August 20, 1954, the self-insured employer itself initiated the claim, indicating accident on August 6, 1954, and reporting and describing the injury as a "Strain of right biceps muscle — (long head) aggravated by work"; and when, after award, the case was closed on May 26, 1955, it was upon a finding of accident of August 6, 1954, and other appropriate findings with respect to a "Strain right biceps muscle". The employer paid the award; there was never an appeal. A "strain" is usually or often an accidental injury. The result of the injury was a "condition" and the proof is reasonably consistent with a theory of a work-induced aggravation of that condition and thus, fundamentally an aggravation of an accidental injury. The board's finding might appear to be in the alternative were this a new case but in this reopened case, in which accident was originally established and never questioned, we equate it to a finding of accidental injury resulting in a condition which the work subsequently aggravated. There was substantial evidence of aggravation. As to surgery we think the proof was not such as to require the board to find that the claimant's refusal to undergo surgery was unreasonable. Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Taylor and Aulisi, JJ., concur.