
    In the Matter of the Claim of Lulu Burris, Respondent, against William P. Lewis et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued October 16, 1956;
    decided February 28, 1957.
    
      
      Ralph 8. Stowell and Joseph D. Edwards for appellants.
    
      Jacob K. Javits, Attorney-General {Carl Madonick, James O. Moore, Jr., and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Van Voorhis, J.

Claimant’s son worked for appellant employer a total of five nonconsecutive days in May, 1952. He was engaged in assembling wooden frames to serve as moulds for a concrete cellar wall to be poured in the construction of a house. At 4:30 in the afternoon of May 22d, while placing or being about to place some tools or other articles on a truck, he collapsed and died from heart failure. His mother has been granted an annuity upon the theory that he died as the result of an industrial accident. One of the members of the Workmen’s Compensation Board dissented, stating that “ There was nothing ‘ catastrophic or extraordinary ’ arising out of his employment ”, and that “ Decedent’s work had not subjected him to unusual strain and exertion.”

Inasmuch as “ a claim of ‘ accident ’ consisting of heart injury from work strain cannot be sustained without medical testimony ” (Matter of Owens v. McGovern, 309 N. Y. 449, 453), it is necessary to examine the medical testimony in order to ascertain whether there is substantial evidence to sustain this award. The only medical evidence for claimant (carrier’s expert denied any causality) was furnished by an assistant medical examiner whose opinion depended upon an autopsy which he performed. This medical witness certified immediately afterward to the State Department of Health, and likewise testified at the hearing before the referee in Workmen’s Compensation, that the cause of death was “ Chronic rheumatic heart disease, active” and that the “Antecedent causes diseases or conditions, if any, giving rise to the above ” were “ Severe, calcific aortic stenosis ”. He described the details of the long-term deterioration in this man’s heart, making the significant comment that “ No fresh lesions are noted.” He testified that ‘ ‘ any stress or strain ’ ’ would have been sufficient to precipitate his death, stating that it was not necessarily important to know how heavy weights he carried while working before his death, which he said could even have occurred at home in bed.

Claimant’s physician’s testimony thus indicated that there was no recent heart injury, which would have existed if he had sustained a coronary thrómbosis or an occlusion, and that his death resulted from previous heart disease, which was a conn petent producing cause irrespective of whether or not he was subjected to any unusual strain.

Thus the only medical witness who testified for claimant failed to establish that this man died from any unusual strain connected with his work or otherwise. Matter of Masse v. Robinson Co. (301 N. Y. 34) overruled prior decisions that in order to be compensable, a heart attack must have been caused by a strain more severe than was imposed by the usual nature of the employee’s work (e.g., Matter of Dworak v. Greenbaum Co., 287 N. Y. 555; Matter of La Fountain v. La Fountain, 284 N. Y. 729), but the Masse case nevertheless requires that the regular job activity shall entail greater exertion than the ordinary wear and tear of life, and that the heart attack shall have been produced by the “ unusually hard ” work thus demanded.

Sustaining this award would require us to go beyond the Masse ruling, and convert workmen’s compensation coverage into sickness or survivors insurance in this type of situation. Not only is there no evidence of fresh heart lesion, but also there is no medical opinion of any overexertion or strain as a causal factor in this man’s death. It is evident from the rest of the testimony of this only medical witness who testified for claimant that any exertion would have been an overexertion for this unfortunate man, and that in expressing the opinion that the type of work he was doing precipitated Ms death, the doctor merely meant that he was engaged in some type of activity, and that any kind of activity was sufficient to that end. We do not have here the situation of a man who is employed in a particularly strenuous job, and where there is evidence that a heart attack has been induced by some overexertion which is normal to the ordinary course of arduous employment. The Masse case decided that the precipitating cause need not be something more strenuous than the normal performance of the work demanded, provided that the ordinary course of the work was sufficiently strenuous to require more than normal exertion. But where, as here, a heart has deteriorated so that any exertion becomes an overexertion, where the mere circumstance that the employee was engaged in some kind of physical labor is what impels the doctor to testify that Ms work caused his death, we would have reached a point, if this award were to be upheld, where all that is necessary to sustain an award is that the employee shall have died of heart disease. ‘ ‘ Insofar as it caused this result,” quoting from Matter of Detenbeck v. General Motors Corp. (309 N. Y. 558, 561), the work in which he was engaged simply amounted to the ordinary wear and tear of life impinging on the infirmity ” with which he had been previously afflicted. Here it is plain that in the opinion of the only physician whose testimony could support the award, death resulted from the circumstance that he had been subjected to any kind of exertion, even the exertion of merely being alive, so that, in this assistant medical examiner’s opinion, death might easily have come during sleep. The testimony of this doctor throughout supports his original opinion, expressed in his certificate of death before compensation became in issue, that death was caused by “ Chronic rheumatic heart disease, active ” and that the only antecedent cause was “ Severe, calcific aortic stenosis ’ ’.

Medical opinion ‘ ‘ lacks probative force where the conclusions are ‘ contingent, speculative, or merely possible ’ ”, and does not rise to the level of substantial evidence (Matter of Riehl v. Town of Amherst, 308 N. Y. 212, 216). There being no residue in the record of legal evidence of any causal relationship, the claim must be dismissed on the law (Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65, 71; Matter of McCormack v. National City Bank, 303 N. Y. 5, 9; Matter of Riehl v. Town of Amherst, supra).

The order appealed from should be reversed, and the claim dismissed.

Dye, J.

(dissenting). I dissent and vote to affirm on the ground that the determination of causally related death was supported by substantial evidence. First, let me point out that the decedent, then 44 years of age, with no prior warning or history of an existing heart condition, dropped dead on the job as he lifted a nail keg weighing about 50 pounds from the ground to the high tailboard of his employer’s truck, a task he had never done before, although related to his employment.

What, then, caused this fatal consequence? Was it due to accident induced by overexertion incident to lifting the heavy keg — a recognized basis for a finding of accident and causal connection— or was it a normal consequence of a natural bodily deterioration due to heart disease? Such inquiry presents nothing more than an issue of fact for determination by the board (Workmen’s Compensation Law, § 20), resolution of which is properly sought by resort to testimony of medical witnesses (Matter of Owens v. McGovern, 309 N. Y. 449), for it is well established that “ "Whether a particular event is an industrial accident is to be determined, not by any legal definition, but by the common-sense viewpoint of the average man.” (Matter of Masse v. Robinson Co., 301 N. Y. 34, 37.)

An unusal exertion by one suffering a pre-existing condition is a commonly accepted cause of industrial accident entitling the employee — or if deceased his dependents — to benefits under the Workmen’s Compensation Law, such for instance, as the strain and stress incident to the lifting of a power drill weighing seven or eight pounds (Matter of Judson v. Ayers & Galloway Hardware Co., 279 App. Div. 700, motion for leave to appeal denied 303 N. Y. 1013); the pushing of a wheelbarrow of sand and gravel (Matter of Duca v. Nonpariel Concrete Co., 279 App. Div. 830, motion for leave to appeal denied 303 N. Y. 1012); the lifting of 80-pound coils of wire from the floor (Matter of Goodman v. Masell Mfg. Corp., 279 App. Div. 830, motion for leave to appeal denied 303 N. Y. 1013; the carrying of a sack of grass seed (Matter of Moreland v. Brown Milling Co., 279 App. Div. 1107, motion for leave to appeal denied 304 N. Y. 988); the lifting of cases of milk from a truck (Matter of Hyber v. Hegeman Farms Corp., 279 App. Div. 814, motion for leave to appeal denied 303 N. Y. 1013); the operating of a hand crank on a winch (Matter of Bealer v. Town of Amherst, 278 App. Div. 993, affd. 303 N. Y. 963); taking down a door used for display purposes (Matter of Sheehan v. Sears, Roebuck & Co., 279 App. Div. 1126, motion for leave to appeal denied 304 N. Y. 990) or where a fireman participated in a parade and exhibition drill (Matter of Cottrell v. Pleasantville Fire Dist., 279 App. Div. 1124, motion for leave to appeal denied 304 N. Y. 986).

The mere fact that the decedent may have been performing his customary duties does not necessarily require refusal of such a finding (Matter of Rowan v. Jenks Heating Co., 2 A D 2d 738; Matter of Fisher v. Buffalo Elec. Co., 2 A D 2d 612; Matter of Olmstead v. Perland Realty Corp., 1 A D 2d 709; Matter of Bahn v. S. Wolfensohn, Inc., 286 App. Div. 902; Matter of Sleator v. National City Bank, 285 App. Div. 393, affd. 309 N. Y. 708; Matter of Gioia v. Courtmel Co., 283 App. Div. 40, motion for leave to appeal denied 306 N. Y. 985; Matter of Moberg v. 335 Lefferts Ave. Corp., 280 App. Div. 906, affd. 305 N. Y. 786; Matter of Borra v. Siwanoy Country Club, 280 App. Div. 906, motion for leave to appeal denied 304 N. Y. 985; Matter of Krupinski v. U. S. Radiator Corp., 279 App. Div. 1107, affd. 305 N. Y. 732; Matter of Mehl v. Graziano Sons, 280 App. Div. 905), as it has been held that, when the nature of the work in which decedent was engaged before death was not intrinsically different, it became unusual and involved extra stress when he continued to work in a state of ill health (Matter of Kehoe v. London Guar. & Acc. Co., 278 App. Div. 731, affd. 303 N. Y. 973), which principle is equally available when the employee is ignorant of his condition (Matter of Krupinski v. U. S. Radiator Corp., supra; Matter of Borra v. Siwanoy Country Club, supra; Matter of Moberg v. 335 Lefferts Ave. Corp., supra), for it is recognized that such fatal heart failure may be accidental if the employee, by miscalculation of his own strength, inadvertently hastens his death by exertion that caused the final breakdown (1 Larson on Workmen’s Compensation Law, § 38.83, p. 565).

Here, after the decedent had toppled over dead while lifting a heavy keg as above described, an autopsy was performed by Dr. Lukash, a specialist in internal medicine, who stated in his report, which was in no way changed, modified or rescinded when he took the stand, that cause of death was ‘ ‘ Heart: Chronic rheumatic heart disease, .inactive, active ’ ’ and that, in his opinion, ‘ ‘ the work that this decedent was doing on the day of his death and the day previous thereto was a competent producing cause of his death.” He later testified: “ It is reasonable to assume that the state of the man’s heart disease, that any stress or strain, stress or strain of the type of work that this man was doing was a competent producing cause of this man’s death. # * * It was a factor for the cause of his death ” or, as he said on cross-examination, “ Any man with that type of heart disease, with the diminished coronary circulation, the stress and strain will be adequate to produce a sudden death in the individual.”

The employer and his carrier sought to cancel out the effect of this affirmative testimony by calling Dr. Sigler who gave as his opinion, based upon information he had gleaned from the contents of the folder of the Hartford Accident and Indemnity Company kept by it as carrier and the facts as related in the hypothetical question: ‘ ‘ there is no causal relationship Such testimony was not conclusive on the board and served for no greater purpose than to raise a conflict which the board could and did resolve by crediting the testimony of Dr. Lukash that the lifting of a heavy keg placed such a strain and stress on the pre-existing heart condition as to account for the sudden death. True, the pre-existing condition revealed by the autopsy was so serious that death might have occurred ‘ ‘ in bed ’ ’ but the fact of the matter is, the death actually occurred at the moment the heavy keg was being lifted to the tailboard of the truck, a factor which could not reasonably be disassociated from the pre-existing heart condition. It is a truism to say that an extra exertion which is of no consequence to one individual may well be fatal to another. As we have said above, the issue of causally related death was one of fact. Accordingly, the determination of the board, notwithstanding the conflict in the evidence, was final and conclusive. We cannot say, as matter of law, that under the circumstances of this case, the board’s finding was not supported by substantial evidence.

The order appealed from should be affirmed, with costs to the Workmen’s Compensation Board.

Desmond, Fuld and Burke, JJ., concur with Van Voorhis, J.; Dye, J., dissents in an opinion in which Conway, Ch. J., and Froessel, J., concur.

Order of Appellate Division reversed, the award of the Workmen’s Compensation Board annulled and the claim dismissed.  