In the Matter of the Claim of Irene W. Falardeau, Respondent, v. Standard Shade Roller Corp., Appellant. Workmen's Compensation Board, Respondent, 21 A.D.2d 945

Hamm, J. The self-insured employer appeals from a unanimous board affirmance of a Referee’s decision awarding compensation to the claimant. The employer contends that the board’s decision was “ an alternative finding”, that the evidence does not support finding either of industrial accident or occupational disease, that it also does not support a finding “that the claimant’s present condition is an aggravation of the preexisting accident” and further contends that the claimant has unreasonably refused to submit to surgery.

The board stated: “ On review we find that claimant’s injury was due to the nature of her employment.” On August 20, 1954, the self-insured employer itself initiated the claim, indicating accident on August 6, 1954, and reporting and describing the injury as a “Strain of right biceps muscle—(long head) aggravated by work”; and when, after award, the case was closed on May 26, 1955, it was upon a finding of accident of August 6, 1954, and other appropriate findings with respect to a “ Strain right biceps muscle”. The employer paid the award; there was never an appeal.

A “strain” is usually or often an accidental injury. The result of the injury was a “ condition ” and the proof is reasonably consistent with a theory of a work-induced aggravation of that condition and thus, fundamentally an aggravation of an accidental injury. The board’s finding might appear to be in the alternative were this a new case but in this reopened case, in which accident was originally established and never questioned, we equate it to a finding of accidental injury resulting in a condition which the work subsequently aggravated. There was substantial evidence of aggravation.

As to surgery we think the proof was not such as to require the board to find-that the claimant’s refusal to undergo surgery was unreasonable. Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.