Opinion
June 28, 1949.
Appeal from Workmen's Compensation Board.
The deceased employee suffered a severe attack of heart failure as he arose from his bed at home on the morning of April 16, 1947, and which proved fatal five weeks later. On the morning of the preceding April 9th, while at home, he had sustained an initial attack of heart failure which soon passed away and he went on to his work. There is evidence that during the interim of those dates the routine of his regular duties in the employment were more arduous than usual and involved somewhat unusual physical effort which the medical proofs causally relate to his fatal heart attack of April 16th. The board has found that the accidental injury occurred during the week ending April 15th. There is no evidence of deceased's having experienced an accident during that week other than that his work was somewhat more arduous than usual. The findings of accidental injuries are without proof to sustain them. They are not assignable to any accidental experience "identified in space or time" or to any particular event which was "catastrophic or extraordinary" and which arose out of and in the course of the employment. ( Matter of Jeffreyes v. Sager Co., 198 App. Div. 446, affd. 233 N.Y. 535; Matter of Connelly v. Hunt Furniture Co., 240 N.Y. 83, 85, 86; Matter of Lerner v. Rump Bros., 241 N.Y. 153, 155.) We may not say that unusual hard work in regular course of an employment prolonged for a week or so is an event of accident. Decision and awards reversed and claim dismissed, without costs. Brewster, Deyo and Santry, JJ., concur; Foster, P.J., dissents in the following memorandum in which Heffernan, J., concurs: I dissent. There was evidence from which the board could find a series of unusual strains, or undue exertions, during the week preceding the fatal heart attack; and there is medical testimony of causal relation. If we are to reverse, as I see it, we may say as a matter of law that a series of strains cannot constitute an accident. I think this is drawing the line too fine, and such reasoning would logically lead to the conclusion that undue exertion in the morning would not sustain a finding of accidental injury if the heart attack happened in the afternoon. It seems to me the time element belongs in the realm of fact into which we are not permitted to intrude.