Claim of Wasyluk v. Webb & Knapp, Inc. , 12 A.D.2d 555 ( 1960 )

The sole question on this appeal is whether the refusal of the claimant to submit to was unreasonable. The claimant suffered an umbilical hernia on March 10, 1952. On October 3, 1955 while working for the appellant as a cleaning woman she sustained a further aggravation of the original hernia. At that time she was 49 years of age and refused to undergo surgery to correct the condition. She has experienced a previous operation “ which went very badly”. As a result of the accident on October 3, 1955, the prior hernia condition became considerably aggravated and caused the daimant to become completely disabled. The medical testimony is in accord that surgery would be a proper procedure to attempt to remedy the hernia condition and if successful, would permit her to return to work and thus eliminate further claims for disability. At least one of the doctors testified she had a “mortal fear ” of another operation and that with the proper surgical garment, she would be able to do her work with the exception of heavy lifting which in all probability would not have been recommended even if she had undergone the operation. The medical testimony determined that it was unreasonable for claimant to refuse the operation and that by having it immediately she would avoid future complications. Such testimony does not justify delay in the performance of the operation because of reluctance or fear on the part of the claimant. (Matter of Palloni v. Brooklyn-Manhattan Tr. Corp., 215 App. Div. 634.) Decision and award of the Workmen’s Compensation Board reversed and the matter remitted, with costs to the appellants.