Claim of Lesnik v. National Carloading Corp.

Bergan, J. Claimant in this Workmen’s Compensation case is a business executive; to be exact, a vice-president in charge of revenues of the corporate appellant employer. He suffered a heart attack while attending a horse race in California. This incident is the basis of his claim for compensation which the board has allowed. It could be found readily enough that claimant was at the race track in the course of employment. It was the employer’s usual custom that an officer in the territory would make himself available in entertaining a customer. Claimant was traveling in the employer’s business in California at that time and went to the race track in connection with the entertainment of a customer by another company official. It is not, however, demonstrated that anything happened at the race track itself to suggest accidental causation then and there of the physical condition. No stress is shown. Any betting losses which claimant might sustain would be assumed by the company; and the record shows no incident of physical stress or of emotional impact occurring at the race track. The company official who invited claimant to the race track told him he felt'it would be “ a form of relaxation ” and claimant seems to have accepted this evaluation. The theory of “ accident ” upon which the board has based its award is not that anything particular did happen at the race track in connection with the work; but rather that the claimant before going to the race track had been following an unusually active schedule in efforts to build up revenues with which he was especially concerned and which had been falling off; that he was worn down by this continued effort and suffered the heart attack as a result. Although there is a finding by the board that the heart attack was “ due to unusual exertion and effort and physical and emotional strain ” there is no finding, and there is certainly no proof of, any physical or even emotional strain at the time of its occurrence. The essential finding of the board in this respect is that for five months claimant had been under “ great tension ’’due to the financial losses'of the employer; had been called upon “to do considerable traveling ”, and to “ work longer ” with increased mental and physical strain. This is not a compensable accident, looking at the word “ accident ” with all the meaning that has been carried to it by administrative and judicial construction. This is not because claimant is an executive. Executives can and do sustain accidents while performing their work. Among other things that [651] will readily come to mind, they may stumble over a rug, or slip on a floor or get a strain lifting a chair. Nor is this event not an accident because claimant was at a race track; it is to be observed that accidents occur with some frequency at race tracks. The illness shown in this record is not accidental because no eventful happening can be demonstrated to have caused it; and its only connection with the work is a gradual physical deterioration over a period of time. So settled has been the viewpoint of the Legislature and of the profession that this kind of physical deterioration is not accidental in the sense used in the Workmen’s Compensation Law, that diseases growing from employment, but not caused by a definite happening in the work have been placed in a class by themselves, treated as special risks, and given a separate allocation in the compensation structure. If resort be had to the common sense of the average man, it would be unlikely that the average man would think of claimant’s heart attack as the accidental product of a “ particular event ” in his employment within Matter of Masse v. Robinson Co. (301 N. Y. 34), which permitted the court to look for assistance to the average man’s common sense. But even that definition, by its own terms, required the occurrence, not only of an “ event ” but, significantly, of a “ particular event ”. The event intended was not, of course, an entirely intra-organic physical change, since in the purely medical sense any change is regarded as an “ event ”; but must be a physical happening in the external employment environment operative upon the human organism. It is true enough that in the development of the theory of industrial accident in heart cases, a policy of marked liberality has been followed. The “ catastrophic ” nature of an accident (Matter of Lerner v. Rump Bros., 241 N. Y. 153, 155) has been very broadly regarded in these cases, but even then the happening of some external event in connection with the work and causing the heart condition has been required. In Matter of Kehoe v. London Guar. & Acc. Ins. Co. (278 App. Div. 731) for example, the employee was not engaged in physical work, but had suffered a heart condition for some time and was required in the course of employment to climb a long subway stair involving considerable strain for a man in his condition and died from a heart attack as a result. Although the employee in Matter of Broderick v. Liebmann Breweries (277 App. Div. 422) was doing his usual physical [652] labor at the time of his heart attack, he was under physical strain in doing the work and the work that he was then doing in a boiler was under temperatures “ above normal ”. The rule of the eventful nature of an accident has been much more rigidly applied to physical consequences other than heart conditions and the theory of the “ catastrophic ” nature of the accidental event seems in those cases to be applicable. (Matter of Deyo v. Village of Piermont, 283 App. Div. 67 [1953].) In both Matter of Furtardo v. American Export Airlines (274 App. Div. 954) and Matter of Anderson v. New York State Dept. of Labor (275 App. Div. 1010) on which the board relies, the respective records disclose the heart attacks occurred, while the employees were actually engaged in the employment activity which caused the strain; and in each case the employee continued at the same activity after a first attack and suffered another in the work. We do not regard these cases as controlling here or as requiring us to affirm this award. To affirm this award we must be ready to hold that if a man increases the tension of the administrative work and later suffers a heart attack while at rest, this is a compensable accident. We are not ready to go that far in the case before us. Whether resort be had to what the average viewpoint of definition would be; or whether reference be had to the more recondite viewpoint of judges; or even on how judges regard what other average men think would be an accident, the result in our view remains the same. An accident is not established on this record. The award should be reversed and the claim dismissed, with costs to the appellants.