McCormick v. Green Bus Lines, Inc.

• Decision Date: 17 November 1971
• Citation: 326 N.Y.S.2d 557,276 N.E.2d 619,29 N.Y.2d 246
• Parties: , 276 N.E.2d 619 Claim of Ann McCORMICK, Appellant, v. GREEN BUS LINES, INC., Respondent. Workmen's Compensation Board, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 557

326 N.Y.S.2d 557

29 N.Y.2d 246, 276 N.E.2d 619

Claim of Ann McCORMICK, Appellant, v. GREEN BUS LINES, INC., Respondent.

Workmen's Compensation Board, Respondent.

Court of Appeals of New York.

Nov. 17, 1971.

Louis Mendelson and William Doblin, New York City, for appellant.

Jacques Smit and Dominic A. Morabito, New York City, for Green Bus Lines, Inc., respondent.

No appearance for Workmen's Compensation Bd., respondent.

BERGAN, Judge.

The Workmen's Compensation Board has found that claimant's deceased husband 'performed strenuous work' as a bus driver on July 17, 1964 which 'precipitated an irreversible type of cardiac failure' and that there was causal relation between this work effort and his death three days later.

The question now is whether the record shows substantial evidence in support of this finding. The Appellate Division was of opinion there was not sufficient evidence of performance of 'strenuous work' greater than the exertion incident to 'the ordinary wear and tear of life', a phrase derived from Matter of Masse v. James H. Robinson Co., 301 N.Y. 34, 37, 92 N.E.2d 56, 57. Accordingly the award was reversed and the claim dismissed, 33 A.D.2d 630, 304 N.Y.S.2d 807.

The rule as to what is strenuous work is not readily to be generalized to fit all men and all cases alike. All men suffer some adverse physical deterioration from the wear and tear of life; but one man with inadequate cardiac reserve who continues nevertheless in employment may find the performance of physical work too strenuous for him at a particular time and under particular conditions when the same work would not adversely affect other men under any conditions; or even that particular man at other times under the similar physical conditions.

To a man thus impaired, if the actual work done is found to have precipitated the cardiac event which in turn causes disability or death, a sufficient factual relationship may be found between the strain of the work and the result to be deemed an accident within the scope of the Workmen's Compensation Law if such a conclusion be supported by medical proof.

The decision in Matter of Masse v. James H. Robinson Co., 301 N.Y. 34, 92 N.E.2d 56, Supra illustrates this. The court there (p. 37, 92 N.E.2d p. 57) noted the Appellate Division's observation (275 App.Div 976, 90 N.Y.S.2d 241) that 'unusual hard work in regular course of an employment' would not be 'an event of accident' ran against the decisions in this court committed to 'a different conclusion'.

The court then laid down a clear statement of the rule: 'A heart injury such as coronary occlusion or thrombosis when brought on by overexertion or strain in the course of daily work is compensable, though a pre-existing pathology may have been a contributing factor' (p. 37, 92 N.E.2d p. 57).

And in Matter of Burris v. Lewis, 2 N.Y.2d 323, 160 N.Y.S.2d 853, 141 N.E.2d 424, on analysis of Masse, it was noted that the court had there overruled earlier decisions that 'a heart attack must have been caused by a strain more severe than was imposed by the usual nature of the employee's work' (p. 326, 160 N.Y.S.2d p. 855, 141 N.E.2d p. 426).

A number of decisions of this court are consistent with this statement and are analyzed in the court's opinion in Matter of Schechter v. State Ins. Fund, 6 N.Y.2d 506, 190 N.Y.S.2d 656, 160 N.E.2d 901, which noted that the excessive strain in the work may exist even though the work performed 'which precipitates the heart attack is of the same general type as that in which he is regularly involved' (p. 510, 190 N.Y.S.2d p. 660, 160 N.E.2d p. 903). What is a 'heart attack' in the sense of 'accident' is ultimately a medical question...