Currie v. Town of Davenport

• Decision Date: 10 July 1975
• Citation: 373 N.Y.S.2d 107,335 N.E.2d 323,37 N.Y.2d 472
• Parties: , 335 N.E.2d 323 Claim of Anna CURRIE, Respondent, v. TOWN OF DAVENPORT et al., Appellants, Workmen's Compensation Board, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 107

373 N.Y.S.2d 107

37 N.Y.2d 472, 335 N.E.2d 323

Claim of Anna CURRIE, Respondent, v. TOWN OF DAVENPORT et al., Appellants, Workmen's Compensation Board, Respondent.

Court of Appeals of New York.

July 10, 1975.

John M. Cullen and George Cholet, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Henriette B. Frieder, New York City, Ruth Kessler Toch, Albany, and Daniel Polansky, New York City, of counsel), for Workmen's Compensation Bd., respondent.

FUCHSBERG, Judge.

The issue here is: Was there sufficient evidence presented to sustain the finding of fact made in this case by the Workmen's Compensation Board that claimant's decedent, Vernon Currie, an employee of the Town of Davenport, suffered his death because of natural causes rather than from an accidental injury within the meaning of the Workmen's Compensation Law?

The Appellate Division reversed that finding, holding that substantial evidence to sustain it was 'totally lacking' and ordered the claim returned to the board for action in accordance with the court's decision (40 A.D.2d 744, 336 N.Y.S.2d 742). That order, not being a final disposition of the case, was not then appealable. (CPLR 5601 subds. (a), (d).) The board, in compliance with the direction of the court, and without further introduction of evidence, thereafter made an award against the employer and, as provided by subdivision 8 of section 15 of the Workmen's Compensation Law, held the Special Disability Fund liable for payments after 104 weeks of disability. This appeal to us is now taken directly from that decision pursuant to CPLR 5601 (subd. (d)). As permitted by that section, appellants now bring up for review the order of the Appellate Division reversing the board's original decision. (Matter of Board of Educ. of City of N.Y. v. Nyquist, 31 N.Y.2d 468, 472, 341 N.Y.S.2d 441, 444--445, 293 N.E.2d 819, 821.) For the reasons which follow, we have concluded that the order should be reversed and the initial decision of the board reinstated.

Analysis reveals the dispute here was less over the facts than about the inferences to be drawn from them. At about noon of September 1, 1970, Currie, then 65, was last seen carrying a five-gallon can of water toward a landfill site at which he had been working. An hour later, he was found dead. It occurred at a time when he would be in the course of his employment.

The decedent had a long prior history of medical problems, including arteriosclerotic heart pathology and diabetes. Coronary artery disease required that he be on pentacythritol tetramitrate and nitroglycerin. In recent years, he had been twice hospitalized for that condition. On one of those occasions, he suffered a pulmonary embolism as well. Following a heart attack in 1967, his work was limited to only one full day and two half days a week at light work.

The hearing before the Workmen's Compensation referee concentrated on causation and revolved around medical proof. A Dr. VandenBerg, decedent's personal physician, testified to Currie's medical history, both from his personal knowledge and from his medical chart. In answer to a hypothetical question, he expressed the opinion that carrying the can of water contributed to Currie's death. On cross-examination, however, he agreed that, in view of Currie's underlying condition, a myocardial infarction was a very common development which could occur and bring about death in and by itself. Dr. VandenBerg had not examined the decedent for 11 weeks before the death occurred. Nor did he examine the body thereafter.

Dr. VandenBerg's summary of Currie's past condition, and of his job profile, had been reviewed for the town by a Dr. J. T. Walters, a cardiac specialist. Dr. Walters' report, received in evidence, attributed the death to 'arteriosclerotic heart disease which had been present for several years and was progressive'. He specifically ruled out industrial accident as a cause. Claimant's attorney declined the opportunity, offered by the referee, to have Dr. Walters produced for cross-examination.

Dr. Harry J. Wilbur, the Delaware County Medical Examiner, in his official report, which was also considered by the referee, expressed the opinion that the cause of death was cardiac arrest resulting from arteriosclerotic heart disease and uncontrolled diabetes. He did not mention trauma or work as a possible cause, even a contributory one.

Clearly then, the most crucial parts of what the three medical witnesses had to say, orally or in writing, were not expressions of medical fact but of medical opinion. Even the main contribution to the hearing coming from Dr. VandenBerg, the only one of the three to actually testify, consisted of a recital of his views as an expert rather than his observations as an attending physician. He knew no more about the events at the time of the death, and that by hearsay, than did anyone else. He had no firsthand knowledge of the progress of decedent's condition between June 17, the date of his last examination, and September 1, when Currie passed away. There was no suggestion that any occasion, whether of surgery or otherwise, had ever afforded him the opportunity to directly visualize the condition of the decedent's circulatory system as a basis for postmortem comparison. If he had, it would have been of limited meaning since he never made a postmortem examination, either by way of autopsy or even externally.

True it is that, unlike Dr. Walters and Dr. Wilbur, Dr....