Schuren v. Wolfson

• Citation: 330 N.Y.S.2d 368,281 N.E.2d 169,30 N.Y.2d 90
• Court: New York Court of Appeals
• Decision Date: 17 February 1972
• Parties: , 281 N.E.2d 169 In the Matter of the Claim of Sarah SCHUREN, Appellant, v. Rose WOLFSON et al., Respondents. Workmen's Compensation Board, Respondent.

Page 368

330 N.Y.S.2d 368

30 N.Y.2d 90, 281 N.E.2d 169

In the Matter of the Claim of Sarah SCHUREN, Appellant, v. Rose WOLFSON et al., Respondents Workmen's Compensation Board, Respondent.

Court of Appeals of New York.

Feb. 17, 1972.

Max L. Katzman, New York City, for appellant.

Kenneth K. Floyd and Philip J. Caputo, New York City, for Mrs. Rose Wolfson and Hartford Accident & Indemnity Co., respondents.

BERGAN, Judge.

Claimant's husband had been suffering from cardiac disease and under medical care for five years before his sudden death June 20, 1966 while in the course of his employment as a chauffeur. In 1961 he suffered from a heart block and in 1963 from an acute myocardial infarction. In April, 1966, within two months of his death, he was treated for cardiac failure and from May 1 to May 12--a little over a month before his death--he was hospitalized for congestive heart failure.

A cardiac specialist called by claimant expressed the opinion that decedent was so disabled that he 'should not have been performing any physical labor whatsoever'. Nevertheless decedent continued to work and the employer continued him in work although his condition and recent hospitalization were known to the employer.

It was to encourage the employment of physically handicapped people, and their continuance in employment, that provision for reimbursement from a special fund is made in the statute (Workmen's Compensation Law, Consol.Laws, c. 67, § 15, subd. 8). Such a claim for reimbursement has been made by the employer and carrier here and held open for determination by the board.

The physical effort in the work which triggered decedent's heart attack was not much for a person in normal health. He helped the female cook and housekeeper to carry a heavy piece of luggage from the stoop in front of the employer's house across the sidewalk and lift it into the trunk of the car he was to drive to the airport.

The piece of luggage was described as 'very heavy'. There is an estimate it weighed 70 to 75 pounds. The housekeeper, who alone had taken it down the stairs, helped decedent (each holding one end of it) to carry it across the sidewalk and put it in the car trunk. His collapse and death followed immediately.

Claimant's cardiologist testified that this would 'not (be) very strenuous effort for the average individual'. But he expressed the unequivocal opinion, on which the carrier did not cross-examine, not only that it was, indeed, 'strenuous effort' for this decedent, but that it was a 'fatal effort' and, accordingly, that the work was a cause of his death.

The basis for his view is fully laid out: 'But for this individual with this history of disease and its complications it was strenuous effort and, in fact, it was fatal effort because as a result of what he was doing he sustained a fatal cardiac episode from which he did not recover and which resulted in his death. It is my opinion with a reasonable degree of medical certainty that this fatal cardiac episode was responsible for bringing on his death and he should not have been performing work even of this nature.'

Thus there is substantial medical evidence of association between the work and the accidental death of claimant's husband if accepted by the...