Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by employer and carrier from an award of death benefits to the widow and four minor children of the deceased employee. Appellants do not question the original accident, but contend that the employee's death is not causally related thereto by substantial evidence. The duties of the decedent in the employer's warehouse included loading and unloading trucks which involved heavy lifting. On July 27, 1957, decedent experienced severe pain in the groin region while lifting typewriters and business machines. Two days later, on July 29, decedent was examined by a doctor to whom he gave a history of the origin of the pain while at work. The doctor found "an enlarged left testicle severely painful"; made a tentative diagnosis of "traumatic orchitis" and referred decedent to a specialist, who found the same condition and originally diagnosed the condition as possibly an infarction in a tumor of the testicle and possibly a nonspecific epididymitis. On October 3, 1957, the decedent was discharged by the specialist as apparently recovered. Decedent returned to work, but, following medical advice, did no lifting for a time, but soon engaged in his usual heavy lifting activities. The condition recurred, and on October 9, the last day he worked, decedent was discovered in distress by his wife, who immediately called a doctor. Upon the doctor's arrival decedent was dead. The doctor thought the cause of death was "either a coronary or a pulmonary embolism" and not being sure which, called in the Medical Examiner. On autopsy the final cause of death was given as "Hemangioma of testicle with hemorrhage and pulmonary infarction." The autopsy revealed no coronary embolism. It did reveal indications of pulmonary embolism. The autopsy is criticized by medical witnesses as incomplete because the lungs were not dissected to the point of discovering the "positive" evidence of infarction. Nevertheless, there is medical evidence that, "I would say this, with the findings in the lungs I would say there must have been a pulmonary embolism." Appellants' contention that claimant's doctors rejected the autopsy report is incorrect. They criticized it for not pursuing the investigation to the point of "positive" proof of pulmonary embolism, but nevertheless, expressed a clear medical opinion that the death was causally related to the undisputed accident. To sum up the situation the Referee asked one doctor: "I want the doctor's best opinion as to whether or not the work the deceased did was a causative factor in the death. A. I'd say yes. I'd say yes." Such an opinion would be substantial evidence if there had been no autopsy at all. Even the carrier's doctors could not "rule out" a pulmonary embolism arising from the original testicle condition. The evidence is entirely adequate to permit the board to decide as a fact that the death was causally related to the accident, especially when the deceased was 28 years old and exceptionally active and vigorous until the episode which is not disputed. Positive medical proof is not required for a board determination if the board is satisfied that responsible medical opinion supports its finding. ( Matter of Zaepfel v. Du Pont de Nemours Co., 284 App. Div. 693, affd. 309 N.Y. 962.) Award unanimously affirmed, with costs to the Workmen's Compensation Board.