Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal from a decision of the Workmen's Compensation Board which found causal relationship between an accident on September 14, 1953 and a disc condition which required surgery on August 2, 1954 and a resulting disability. The claimant worked as a supervisor at the warehouse of the employer, her father, whose business was raising and processing gladioli for sale. On September 14, 1953, while lifting and carrying bunches of gladioli, she experienced a sharp pain in her back when she placed them on a table. She continued working but the pain persisted and on September 24, 1953, she went to a doctor who diagnosed her condition as "sacroiliac sprain right". In December, the doctor referred her to a neurosurgeon because of "possible herniated disc". The surgeon eventually operated on August 2, 1954 and removed "a large disc". The Referee found causal relationship but the board reversed, one member dissenting. Subsequently the board reconsidered the matter, rescinded its decision and directed claimant to be examined by an impartial specialist. Thereafter the board found, upon a review of the entire record, causal relationship between the accident and the disc condition. On this appeal, the appellants brief two points: 1. No substantial evidence of causal relation; 2. wage rate. It is contended that the medical testimony does not afford substantial evidence to establish causal relationship and that two automobile accidents in which the claimant was involved between September 14, 1953 and the date of the operation militate against such relationship. While claimant had complained as to her back prior to the date of this accident, she described the pain resulting therefrom as a new and different pain. She further testified, without serious contradiction, that she received no injuries to her back in either automobile accident. All of the medical testimony, including that produced by the carrier, associated the accident of September 14, 1953 with the disc condition. The carrier's medical expert, a neurosurgeon, testified the occurrence on September 14, 1953 was a "competent producing cause" and was "the precipitating cause of her herniated disc". He further stated that "Lifting" and "Bending" might cause a ruptured disc. The board's conclusion that a review of the entire record established causal relationship is supported by substantial evidence. If any question is presented on this appeal as to the happening of an accident, it was a factual issue determined by the board in favor of the claimant and solely within its province. The appellants further contend that the wage rate determined by the Referee was improper although both agree that it was controlled by subdivision 3 of section 14 Work. Comp. of the Workmen's Compensation Law. The business in which the claimant was engaged was seasonal. She was paid at the rate of 90 cents per hour with an additional 10 cents per hour for any week when there was no lost time. It was also the practice of the employer to pay an additional bonus each year. The appellants seem to be of the opinion that because the claimant was the daughter of the owner, it was in reality a gratuity, but the record clearly shows that such a bonus was paid to other employees, not members of the family, and that such bonuses had been paid in prior years. There is no testimony in the record to refute the evidence as to wages but, in fact, the appellants' attorney conceded the amount earned in a prior year was correct and it included a substantial bonus. Inasmuch as the decision of the board directed the case to be restored to the Referee's Calendar for reconsideration as to rate, we make no final determination except to observe that in the record now before us there was a fair basis for the Referee's determination as to that aspect of the case. The board determined that the disc condition was attributable solely to the accident of September 14, 1953, and while the appellants question this aspect of the decision, we find there was substantial evidence to sustain the board. Decision unanimously affirmed, with costs.