Opinion
June 19, 1967
Appeals by the employer and its insurance carrier and by the Special Disability Fund under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law from a decision which awarded death benefits. The decedent, a retail milk route salesman, was found dead on the floor of the truck he had used in making deliveries the day before. On that day, his work included his loading by hand into the truck some 35 to 40 cases of bottled milk, each case containing 12 quarts, then stacking the cases in tiers and subsequently lifting, shifting and otherwise handling them in the course of his deliveries. The latter required 99 stops on his route through his Manhattan territory. On each stop, he alighted from the truck and carried milk, sometimes as many as 24 bottles in two hand carriers, through the various apartment buildings in which his customers resided. Decedent's death was certified as due to occlusive coronary sclerosis and hypertensive cardiovascular disease. Claimant's medical expert attributed death to the exertion of his work. The carrier's expert denied causal relation. In denying, first, the occurrence of an accident and, second, causal relation, the carrier in each instance very largely relies on a conceded inaccuracy in the board's decision. The board found "that in the course of employment on December 23, 1963, the decedent loaded and unloaded heavy cases and carried bottles of milk to customers and that on account of the holidays, the amount of deliveries and number of cases carried had been increased, and that such activities were strenuous and required more than normal exertion, which superimposed upon the pre-existing heart condition precipitated the coronary occlusion which culminated in death." The statement emphasized is not correct but the error does not mandate reversal inasmuch as it is too clear to permit of contradiction that neither the claimant's medical expert nor the board relied upon it. The conflict in medical opinion was direct and clear-cut and in the state of this particular record the board in finding causation had to, and obviously did rely solely on the opinion expressed by claimant's expert. He, in turn, when asked whether he assumed that decedent's work that day "was a little heavier than ordinarily", emphatically and specifically replied that he did not, saying, "I am not assuming, and it makes no difference to me whether it was or was not, whether or not his work was heavier that day than usual. What is important to me is that in an individual with underlying coronary arteriosclerosis, the work of lifting and carrying cases of milk weighing in the neighborhood of sixty pounds, is sufficient within — it is on a single basis. I have already stated as a single effort to precipitate the onset of a fatal cardiac episode, and certainly it is therefore more capable of doing it on a cumulative basis. Whether the work was a little bit more or less that day would have no importance to me." Clearly the board could not, and did not intend to adopt as a secondary and unnecessary basis for a purely medical finding of causality an assumption that the medical expert himself had so forthrightly rejected, and the language attacked by appellants must be deemed surplusage. As we said, in slightly different context, "the conflicting issues were so limited and so clearly defined as to permit of no doubt as to the basis of the board's determination, and remittal would serve no useful purpose." ( Matter of Cliff v. Dover Motors, 11 A.D.2d 883, 884, affd. 9 N.Y.2d 891.) In another case, in which the board erroneously found, as it did here, work heavier than decedent's normal work, we said that "it seems plain that the board's basic determination and the intendment and effect of its finding were that the work involved effort more strenuous than normal exertion and we consider that remittal of this four-year-old death case merely to enable the board to correct the language of its decision would be an unnecessary and wasteful ceremony." ( Matter of Jessup v. Jessup Stevens Garage, 12 A.D.2d 699, 700, affd. 10 N.Y.2d 854. ) Decision affirmed, with costs to the Workmen's Compensation Board against appellants employer and carrier. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.