Opinion
March 14, 1962
This is a heart case in which the employer and carrier appeal from an award of death benefits. Deceased, aged 28 years, was employed in the warehouse of a mover. Shortly after he reported for work at about 7:00 A.M. on September 12, 1958, he and a coemployee were engaged in packing articles of furniture and loading them in an army van for transportation overseas. Together they handled three mattresses, a spring and a mirror. Deceased also aided a third employee in moving a sofa. At about 8:30 A.M. while he was using a screwdriver to dismantle a bed frame, he collapsed from a standing position and shortly thereafter died. The autopsy performed on the date of death revealed marked sclerosis with atheroma of the main blood-carrying artery to the heart, its lumen of pinpoint size near its origin and widest part, an absence of fresh thrombi and infarcts and the presence of a firm myocardium. The cause of death is stated in the autopsy report to be: "Coronary sclerosis; Endartritis obliterans coronary artery." Two cardiologists for appellants denied causality. The only medical testimony in claimant's behalf was supplied by the family physician of the deceased, a general practitioner, who, in response to a hypothetical question which assumed the cause of death found by the autopsy, expressed the opinion that "taking into consideration" the advanced degree of his arterio-sclerotic condition the work activity of the deceased on the morning of his death was a competent producing cause of the heart seizure. He testified upon interrogation by the Referee that "an effort could cause the death" from coronary insufficiency but conceded on cross-examination that deceased's condition was a "progressive affair" which, without the intervention of trauma, could cause a spontaneous closing of an artery. In further reference to the cause of death he stated: "It just happened on that particular morning he got * * * this probably sudden closure of this artery and that combination with the work he was doing was enough to carry him over the hump and just relegate him into the realm of death." Later in his testimony he noted that when older persons are afflicted with arterial disease similar to that from which the deceased suffered, they often establish a "collateral circulation" which extends their lives but that "a young man like this, he had no way to develop, that thing went right on, he had no other arteries to supply the heart and when the time came, he just went." The medical opinion of this witness, viewed in the light of the record as a whole, "does not rise to the level of substantial evidence" establishing the existence of causal connection between the work of the deceased and his death. ( Matter of Burris v. Lewis, 2 N.Y.2d 323; Matter of Riehl v. Town of Amherst, 308 N.Y. 212; Matter of Kopec v. Buffalo Brake Beam-Acme Steel Malleable Iron Works, 304 N.Y. 65; Matter of Di Cicco v. Liebmann Breweries, 11 A.D.2d 613. ) Award reversed and the claim dismissed, with costs to appellants against the Workmen's Compensation Board. Herlihy, Reynolds and Taylor, JJ., concur. Bergan, P.J. and Coon, J., dissent and vote to affirm.