Rogers v. General Aniline & Film Corp.

• Decision Date: 16 February 1970
• Citation: 307 N.Y.S.2d 589,33 A.D.2d 1074
• Parties: In the Matter of the Claim of John T. ROGERS, Respondent, v. GENERAL ANILINE AND FILM CORPORATION, Appellant. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 589

307 N.Y.S.2d 589

33 A.D.2d 1074

In the Matter of the Claim of John T. ROGERS, Respondent, v. GENERAL ANILINE AND FILM CORPORATION, Appellant.

Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Feb. 16, 1970.

Dann, Weissman & Lyons, Johnson City, for respondent Rogers.

Coughlin, Dermody & Guy, Richard B. Long, Binghamton, for appellant.

Louis J. Lefkowitz, Atty. Gen., Jorge L. Gomez, New York City, for respondent Workmen's Compensation Bd.

Before HERLIHY, P.J., and STALEY, GREENBLOTT, COOKE and SWEENEY, JJ.

HERLIHY, Presiding Justice.

Appeal by the self-insured employer from a decision of the Workmen's Compensation Board, filed May 9, 1969, awarding benefits to the claimant.

The appellant does not dispute the facts that the claimant's work involving heavy lifting was unusual or strenuous exertion and that such heavy lifting aggravated the claimant's underlying congenital condition of spondylolisthesis. The appellant contends that the present record does not contain substantial evidence to support the finding of 'accident'.

It has been held that the aggravation of the underlying condition of spondylolisthesis can constitute an industrial accident (Matter of Nofi v. American Chicle Co., 9 A.D.2d 966, 193 N.Y.S.2d 509, mot. for lv. to app. den. 7 N.Y.2d 710, 197 N.Y.S.2d 1027, 165 N.E.2d 583). However, in order to find an accident there must be an element of 'suddenness' in either the cause of the disability or the result thereof. (See Matter of Jones v. Curran & Co., 33 A.D.2d 525, 303 N.Y.S.2d 541; Matter of Land v. Dudley Lbr. Co., 32 A.D.2d 977, 978, 301 N.Y.S.2d 682, 683; Matter of Greensmith v. Franklin Nat. Bank, 21 A.D.2d 576, 578, 251 N.Y.S.2d 875, 877, affd. 16 N.Y.2d 973, 265 N.Y.S.2d 288, 212 N.E.2d 774.) It has been particularly held that 'evidence of a sudden, specific and identifiable event * * * is to be found in the onset of severe pain on a particular day. (Matter of Lillis v. Hard Mfg. Co., 13 A.D.2d 598, 212 N.Y.S.2d 451, affd. 11 N.Y.2d 867, 224 N.Y.S.2d 683, 182 N.E.2d 289.)' (Matter of Jones v. Curran & Co., Supra.)

The congenital defect (spondylolisthesis) was described by the appellant's doctor as follows: 'Two portions of the arc of the body are held together just by soft tissue, scar, in other words, and they can allow--and stretch, and allow the body of the vertebra to slide forward on the sacrum because it wasn't originally attached to the posterior element.' In his opinion the symptoms would result from the following: 'It's a weak spot in your vertebral column. It does not stand stresses and strains of a normal conformation and can produce symptoms to degrees, one, because of the slipping forward, and the other, the gradual nature of trying to hold it together by producing more and more scar, and some eventually end up with nerve root pain because of the excess...