Claim of Goldman v. White & Case

Herlihy, J. Decedent, about 68 years of age, had been employed as a messenger by his employer for approximately 11 months prior to the date in question. He had suffered from a pre-existing heart condition, the nature and seriousness of which, by doctor’s prescription required the use of nitroglycerine. On November 29, 1955, he arrived at work about the normal time and during the forenoon pursued his usual activities of making deliveries for his employer to various parts of the city. Sometime after one o’clock in the afternoon he left to make a delivery to Bankers Trust Company at Rockefeller Plaza, New York City. He had no orders as to how to go but it is assumed throughout the record that he took a subway, presumably Lexington Avenue, and all of the testimony as to the number of subway steps, the route taken and similar details are premised on this presumption. He was carrying a brief case with some documents of the ordinary weight of four to six pounds. He made the delivery to the proper personnel at the bank, received a one-page receipt and started from the bank when he slumped over dead. He was at the exit of the bank but still within the building and there are additional assumptions, as to this phase of the case, that he was in the act of pushing a door which was made more difficult because of the wind blowing outside. The board found “he (decedent) was subjected to unusual strain and exertion due to strong winds and cold to which he was exposed while making a delivery to Rockefeller Plaza s * * he was caused to suffer an acute coronary insufficiency ”. An examination of the record convinces us, as a matter of law, of failure of proof to find an accident as defined in Matter of Masse v. Robinson Co. (301 N. Y. 34, 36). Dr. Fishberg, who attended decedent for his heart ailment for some years prior to death, stated it was “ probable ” or “ speculative ” that overexertion could be a cause of death but coupled with that statement were such observations as “To me it sounds like a ridiculous morning for a man of 67 who uses nitroglycerine. When you use nitroglycerine you have a real coronary disease ” and again with reference to the heart con [162] dition and his activities “ If I had known about it, I wouldn’t let him do it.” A doctor testified for the carrier and concluded that decedent died not by reason of any errands or effort but because of natural progression of an antecedent disease. He concluded his testimony ‘ ‘ I think the only reasonable thing we can say is that this man suddenly dropped dead. All else would be in the realm of speculation.” There was no autopsy. From this medical testimony the Referee found no accident and was affirmed by the board. Thereafter on behalf of claimant, a report was filed by Dr. Mendel Jacobi, the file reviewed and a finding made by the board in favor of the claimant. The doctor did not testify as to his report and a review of it demonstrates his conclusions of relationship were arrived at on the basis of imaginary and unrealistic statements, some of which are not part of the record, and lacking probative force, his conclusions being contingent, speculative or merely possible and therefore not substantial evidence. (Matter of Riehl v. Town of Amherst, 308 N. Y. 212, 216.) The cause of death here was not coronary occlusion or thrombosis but coronary insufficiency which does not imply any new cardiac pathology (heart injury) and there is no evidence of any. Such condition is due to the gradual progression of coronary arteriosclerosis. The record as a whole is convincing that there was no accident but rather deceased’s death was caused from the wear and tear of'life as enunciated in Matter of Burris v. Lewis (2 N Y 2d 323). We do not believe Matter of Schechter v. State Ins. Fund (7 A D 2d 813, revd. 6 N Y 2d 506) was intended to change that rule. In that case the myocardial infarction suffered by Schechter was directly related to the intense emotional and physical strain extending over a period of weeks. There is no testimony that the work he did November 29 was different from any other day and under the circumstances herein, the weather conditions — strong wind and cold — should be considered an incident to employment rather than factors in compounding unusual effort or strain as found by the board. Decision and award of the Workmen’s Compensation Board should be reversed and the claim dismissed.