Opinion
August 31, 1961
Appeal by employer and insurance carrier from decision and award by the Workmen's Compensation Board dated and filed October 7, 1959. Claimant, a stenographer, while engaged in operating an electric typewriter sustained on November 7, 1949 an injury to her right thumb. Compensation has been paid her by the carrier from November 10, 1949 to April 3, 1959. The board on January 6, 1958 determined that awards for reduced earnings "should be on a week-by-week basis, in accordance with the payroll in the record" and "For the weeks in which the claimant had no earnings, the reduced earnings rate should be based on a 50% earning capacity." The decision appealed from, which affirmed the award of the Referee for reduced earnings, is based on the actual earnings of claimant covering the periods from April 3, 1959 to May 1, 1959 and from May 1, 1959 to June 19, 1959. Appellants' brief asserts that they "do not question the Board's mechanical application of the statute but resist the awards because they are not supported by the medical evidence on the record as a whole on the question of disability." Claimant continued to work after her injury until November 10, 1949 when the pain in her thumb and right hand became so severe that she discontinued her work. Her attending physician, Doctor Swirsky, diagnosed her injury as tenosynevitis of the right thumb. Doctor Schwartz to whom she was referred by him reported on December 6, 1949 that his examination revealed "no loss of substance of the right thumb. The right hand appears swollen and pale. There is tenderness of the volar aspect of the phalanges of the right thumb. X-ray at this time shows no loss of bone substance or change of structure. I believe she is suffering from a reflex sympathetic nerve reaction. These symptoms may be of prolonged duration, unless stellate ganglion block be induced thereapeutically [ sic]." Doctor Gross examined claimant for the carrier on November 25, 1949 and diagnosed her condition as a contusion of the right thumb "with possible beginning osteomyelitis." He considered her to be disabled and in need of further treatment. Doctor Fett in a report to the carrier dated December 6, 1949 noted her complaints "of intermittent pain in the right thumb, index, and middle fingers associated with some swelling of these digits" and some pain present in her forearm. In his opinion she was suffering from "tenosynovitis involving the first, second, and third digits of the right hand", was "extremely apprehensive" and on that date "totally disabled." In a report dated December 12, 1949 the same doctor stated that although satisfactory progress had been demonstrated, she remained totally disabled. In a third report to the carrier dated December 22, 1949 he found that claimant continued to demonstrate a total disability, temporary in nature. On January 5, 1950 he again reported that at that time she had some working capacity but demonstrated a partial disability. In his last report on January 27, 1950 he was of the opinion that she was still totally disabled. His added comment was that he "would like to state at this time that the prognosis in this case must be guarded." On February 3, 1950 Doctor Lipsey who examined claimant for the carrier stated that in his opinion, despite her objective complaints, she was not disabled and he reasoned that since she had worked from the date of her injury to November 10, she could have continued her employment. A board examining physician reported on February 17, 1950 that claimant had "a slight partial disability." On March 16, 1950 Doctor Rabiner, who examined for the carrier, stated that he found no organic disturbance but reported that claimant "has an anxiety state, a psychoneurosis" and that "she would have a better chance of improvement and recovery if she were to keep herself occupied for by not working, she has so much time to be introspective, self-analytical and emotional." On July 6, 1950 a different examining physician of the board reported, after examination, that claimant had a mild partial disability on the basis of her complaints of pain. On August 28, 1950 her attending physician, Doctor Swirsky, summarized claimant's condition to this point as follows: "At first thumb showed signs of tenosynivitis, later Dr. Gross thought it was an infection. Subsequently psychoneurosis became the obvious diagnosis". Doctor Rabiner and Doctor Denker, who also examined for the carrier, subsequently confirmed her psychoneurotic condition. The former again reported on November 2, 1950 "The diagnosis, therefore, is psychoneurosis" and the latter "we are dealing with a hysterical affection of this right hand. * * * I believe she will continue indefinitely in this neurotic state, unless this case is closed by means of a final lump sum settlement, which should be effected for therapeutic reasons. At present her disability is minimal, but likely to be permanent unless such a lump settlement is agreed upon." In a subsequent report dated June 19, 1953 Doctor Denker stated that claimant was suffering "from a post-traumatic neurosis with a hysterical fixation on this right hand." Doctor Keschner who also examined for the carrier reported on January 19, 1954 that as a result of his neurological examination he diagnosed claimant's condition as "conversion hysteria" which rendered her partially disabled, stated that it was causally related to her accident and that he believed her complaints to be genuine and not those of a malingerer. The above constitutes the medical evidence upon which awards had been made from November 10, 1949 to October 3, 1956 on which date, based on the report of Doctor Merin, a compensation examining physician, claimant was found to be permanently partially disabled, was so classified by the Referee and the case closed. The carrier agreed to continue payments at reduced earnings until such time as there was a change in condition or earnings. On May 7, 1957 it applied for a reopening based upon a change in actual earnings by claimant. Reduced earnings were re-established at $30.84 and the case continued for six months. On January 6, 1958 the board found that all awards from 1956 should be made for the weeks which she worked at reduced earnings of two thirds of the difference between her average weekly wage and her actual earnings and for those in which she did not work her reduced earnings should be based on a 50% earning capacity. Further awards, including that appealed from, were made on the former basis. ( Matter of Matise v. Munro Waterproofing Co., 293 N.Y. 496, 500.) The hearing from which the instant award stems substantially followed the pattern of its predecessors. A wage statement was submitted as the basis upon which claimant's reduced earnings from the date of the previous award could be computed. The carrier and employer contended, as they had at a prior hearing, that claimant intentionally was restricting her employment to one day a week to her financial benefit. Claimant argued that her limited vocational activity resulted from the condition of her hand and that the more she worked, the more she strained it and the longer it took her to get back on an "even keel." At this hearing no professional testimony was adduced by either party although at a prior one appellants had requested an opportunity to produce Doctor Denker who had submitted a report in 1958 stating that claimant was not industrially disabled "despite her nervous complaints." Viewed as a whole, we think that this record contains, in addition to claimant's own testimony, ample medical evidence — furnished in large part by appellants' examining physicians — from which the board properly could have inferred a continuing causally related neurotic disability and its impact on her earning capacity. It would appear, therefore, that the decision of the board is supported by substantial evidence. ( Matter of Heller v. Frahell Realty Corp., 12 A.D.2d 549; Matter of Blanchard v. U.S.O. Camp Shows, 4 A.D.2d 894; Matter of Ali v. Alleghany Ludlum Steel Corp., 6 A.D.2d 942; Matter of Brewka v. Mollet, 279 App. Div. 1104, motion for leave to appeal denied 304 N.Y. 985; Matter of Brady v. Greenwich Sav. Bank, 263 App. Div. 767.) However, the conversion hysteria has existed for a long period of time. In the circumstances presented we think that claimant should be required, upon request, to submit to a further neurological examination. Decision and award affirmed, with costs to the Workmen's Compensation Board. Gibson, J.P., Herlihy, Reynolds and Taylor, JJ., concur.