Claim of Fragale v. Armory Maintenance

Grinsorr, P. J. Appeal is taken by an employer and its insurance carrier from a decision of the Workmen’s Compensation Board which awarded benefits on account of the death of an employee due to a heart attack, caused by “ a severe commotion to the chest ”, as evidenced by fractures of four left ribs and by hemorrhages, all as demonstrated on autopsy; this in the words of claimant’s medical expert, whose opinion of causal relation was adopted by the board, and which conclusion, although controverted before the Referee by other medical opinion, seems not to be disputed here; appellants contesting the award solely on the ground that the ‘ ‘ accident did not arise out of and during the course of the employment.” The accident occurred during an argument between decedent and a coemployee, the only surviving witness to the affair, who said that after a discussion in which he ridiculed decedent’s idea of removing his home to a place nearer his employment, decedent came at him; he pushed decedent, who knocked his hat off; whereupon he again pushed decedent back. The witness continued: “ I must have pushed him into the chair, and the chair was one of those type chairs which wobbled around and the thing turned over and he fell on the arm of another chair, a low chair.” Claimant died en route to the hospital. The chairs were furnishings of the small so-called guard’s shack in which the incident occurred, had been discarded from use elsewhere on the premises and were described by other witnesses — that into which decedent was first pushed as being a typist’s swivel chair, with casters, and the second chair, [304] into which, he fell with his body across the arm or arms, as a tubular aluminum chair with wooden arm rests. The board properly found “ that the decedent sustained an accidental injury arising out of and in the course of his employment * * * when he was engaged in an altercation with the co-employee and fell from the swivel chair, causing fractures of the ribs and precipitating the coronary thrombosis. ’ ’ Appellants argue, and the minority opinion asserts, that the altercation was not the sort of work-induced or work-connected argument or physical encounter upon which a compensable injury may be predicated; and, for the purposes of this appeal at least, that may readily be conceded, as such was not the basis of the award in any event. Death was caused when decedent fell from an unstable chair—an instrumentality and hazard of the employment — into collision with the arm of another chair — an additional work hazard; and, as claimant’s expert testified: “the actual modus operandi of death [was] physiological”, death occurring “as a result of this trauma to the chest with the hemorrhage into the coronary athermatous plaque ”. True, the argument and the push initiated the sequence of events, but they were, at most, concurring causes of the ultimate result, the effective and operative cause of which was a new and concurring factor — the hazard constituted by the guards’ chairs — without which the fatal injury would not have occurred. The rule was stated with clarity by Judge Lehman, who wrote: “ Thus where the primary cause of the accident must be eliminated because it has no relation to the employment, the inquiry proceeds to possible co-operating causes which produced the injury. The test is the same. If, except for the employment, the fall though due to a cause not related to the employment, would not have carried the consequences it did, then causal connection is established between injury and employment, and the accidental injury arose out of the employment. The employment has subjected the workman to a special danger which in fact resulted in injury.” (Matter of Connelly v. Samaritan Hosp., 259 N. Y. 137, 140-141.) Subsequent references in the opinion to other reported cases make it abundantly clear that it is the co-operating factor—the new and special danger — and not the initial impetus, which determines compensability; and thus, injuries sustained by an employee walking in the street, upon falling to the pavement in the course of an epileptic seizure were not compensable (Matter of Andrews v. L. & S. Amusement Corp., 253 N. Y. 97) but an employee’s unexplained fall from a wagon to the pavement, where the wheels passed over him, gave rise to an industrial accident, as “ the cause [305] may be disregarded and the inquiry limited to an investigation to disclose whether the fall, having occurred, bore with it such consequences as would not have occurred except for the employment.” (Matter of Mausert v. Albany Bldrs. Supply Co., 250 N. Y. 21, 25.) There is indication in the autopsy report in the case before us that “a roller fell off the [swivel] chair” and the coemployee testified that the swivel chair ‘ ‘ wobbled around and * # * turned over”, creating a situation closely parallel to that in another case which we analyzed by saying: “If the somewhat unusual height of the stool and the desk or the movement or swiveling of the stool as claimant started to sit down, were ingredient in the occurrence of the fall it may be found accidental even though the claimant’s own physiological condition entered into causation ’ ’; and in which case we further held that “ it was within a fair scope of the board’s power to find that the stool, of rather unusual height in the first place, moved or turned when claimant sat in it and that these factors played some contributing part to the accident. In our view that is enough.” (Matter of Stern v. Electrol, Inc., 4 A D 2d 110, 112-113, mot. for lv. to app. den. 3 N Y 2d 707.) There seems to us no basis in reason or logic or in any previous judicial decision to differentiate the idiopathic fall cases, in which this principle of co-operating cause has been applied, from the factual situation now before us; nor can we agree with the statement in the minority opinion that we “ rejected ” the principle in Matter of McKeon v. City of New York (16 A D 2d 1004, mot. for lv. to app. den. 12 N Y 2d 644) and in Matter of Lozupone v. Liberty Fabrics (20 A D 2d 624) in which, in each instance, we affirmed, without opinion, the board’s factual determination disallowing a claim. Certainly it cannot be said that judicial precedent or even esoteric significance of some sort is to be found in an affirmance without opinion, the basis of which cannot with certainty be demonstrated, and certainly cannot be ascertained and followed by other courts or by the Bar. Research discloses no reported case in which the principle of co-operating cause has been held to be inapplicable in any of the so-called assault cases or to be restricted to cases of idiopathic falls. (Cf., e.g., Sivertsen v. State of New York, 24 A D 2d 918.) If it is to the added employment-connected factors or the “ co-operating causes ” that we must look (Matter of Connelly v. Samaritan Hosp., 259 N. Y. 137, 140, supra) it seems impossible to distinguish such an initially impelling force as the thrust of an internal convulsion or the surge of a hemorrhage [306] from the impetus of a playful push or, indeed, a willful assault; or to differentiate the latter from such other forces as an explosion or the collapse of a wall occurring off the premises but causing injuries upon them. (See, e.g., Matter of State Ind. Comr. v. Leff, 265 N. Y. 533; Matter of Filitti v. Lerode Homes Corp., 244 N. Y. 291.) The distinction is not to be found in the fact of the assault, for it is recognized that if the quarrel is sufficiently connected to the work, coverage will exist (see, e.g., Matter of Toro v. 1700 First Ave. Corp., 16 A D 2d 852, affd. 12 N Y 2d 1001; Matter of Muscott v. Janice Stores Corp., 6 A D 2d 921; Matter of Gray v. Daily News, 284 App. Div. 911, mot. for lv. to app. den. 308 N. Y. 1049) and it has been held, that it is not material that claimant may have been the aggressor (Matter of Comr. of Taxation & Finance [Callahan] v. Bronx Hosp., 276 App. Div. 708, mot. for lv. to app. den. 301 N. Y. 813); and only in an extreme case could there be applied the statutory preclusion from benefits by reason of an injury ‘ ‘ solely occasioned * * * by wilful intention of the injured employee to bring about the injury '* * * of himself or another.” (Workmen’s Compensation Law, § 10.) In further seeking a rational basis of distinction, it might be said that in an assault case the initiating cause is a personal one—= unlike the off-premises explosion; but the “ idiopathiefall cases in this respect can he closely analogized to the cases of privately motivated assaults. In both instances, the central causal factor is personal — intensely and conspicuously personal — whether it is a diseased heart, or a personal enemy who is determined to shoot the employee wherever and whenever he can find him.” (1 Larson, Workmen’s Compensation Law, § 12.14, p. 192.16.) The same author argues for the compensability of an injury in a situation which he hypothesizes and which seems closely parallel to that before us, whereby an employee is wounded in the shoulder by a rifle shot directed by his personal enemy and is caused to topple into the cement mixer at which he is working. Professor Larson concludes: “ The shoulder wound would be clearly noncompensable, just as. the purely internal effects of a heart attack in an idiopathic fall case are not independently compensable. But the added effects of falling into, the cement mixer would be compensable, just as if the employee had had an idiopathic fall into a cement mixer.” (Larson, op. cit., § 12.14, pp. 192.16-192.17.) Reason and logic, and sound analogous precedent as well, seem clearly to require affirmance. The decision should be affirmed, with costs to the Workmen’s Compensation Board.