Greensmith v. Franklin Nat. Bank

• Citation: 21 A.D.2d 576,251 N.Y.S.2d 875
• Parties: Claim of Mildred GREENSMITH, Respondent, v. The FRANKLIN NATIONAL BANK et al., Appellants. Workmen's Compensation Board, Respondent.
• Decision Date: 30 July 1964
• Court: New York Supreme Court Appellate Division

Page 875

251 N.Y.S.2d 875

21 A.D.2d 576

Claim of Mildred GREENSMITH, Respondent, v. The FRANKLIN NATIONAL BANK et al., Appellants. Workmen's

Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

July 30, 1964.

Minore & Manes, New York City (Joseph L. Minore, New York City, of counsel), for appellants.

Louis J. Lefkowitz, Atty. Gen. (Daniel Polansky and Morris N. Lissauer, New York City, of counsel), for Workmen's Compensation Board.

Henry J. Capobianco, Lynbrook, for claimant-respondent.

Before GIBSON, P. J., and REYNOLDS, TAYLOR, AULISI, and HAMM, JJ.

GIBSON, Presiding Justice.

Claimant, employed as an analysis clerk in a commercial bank, after the removal of a door near her desk, was subjected, during a period of over three months, to a cold draft on her back from an air conditioner. To mitigate the discomfort, she changed her posture in such fashion as to result in her holding her neck and shoulders in a strained and awkward position. A few days after the initial exposure she suffered a 'spontaneous onset of pain in the cervical area', this suggesting to her physician 'a myositis or arthritic disturbance'; and three months later, while she was at work, her neck suddenly 'collapsed' and, as she testified, 'my head broke down, it went over and I couldn't pick it up any more'. Claimant was unable to work for some time thereafter. Her consultant neurologist made a diagnosis of myositis which, in addition to its usual effects, aggravated a pre-existing arthritis, the doctor testifying: 'Any irritation of the muscular structures of the neck with spasm would aggravate the arthritic condition, and one of necessity is related to the other.' Amplifying his finding of causation, he said that an unusual draft, eliciting irritation and spasm, would render her uncomfortable, tight and tense, so that she would tend to assume a protective posture, working with her shoulders in an awkward position--'all these factors, with posturing, with positional changes, could contract and trigger the mechanism which would throw that neck into spasm and start the whole thing [sic] cycle going.' This Court has previously recognized a myositis thus caused as being the result of an industrial accident. (Matter of Pioli v. Crouse-Hinds Co., 281 App.Div. 737, 117 N.Y.S.2d 734.) Claimant's treating physician diagnosed radiculitis, for which he found causal relationship. Appellants' expert diagnosed '[u]nrelated myositis'.

Upon evidence which we account clear and substantial, the board found 'that removal of the door near the claimant's desk exposed claimant to a hazardous draft from which she had to protect her neck, that the exposure to hazardous draft and the position in which she kept her neck resulted in accidental injury to the neck.' It is urged, however, that there is no evidence of an accident 'assignable to a determinate or single act' or 'to something catastrophic or extraordinary', within the holding in Matter of Lerner v. Rump Bros., 241 N.Y. 153, 155, 149 N.E. 334, 335, 41 A.L.R. 1122. It may well be that the strictness of this concept of accident has been modified somewhat by more recent decisions, such as that in Matter of Schechter v. State Ins. Fund, 6 N.Y.2d 506, 190 N.Y.S.2d 656, 160 N.E.2d 901, in which, over a period of seven weeks, a trial attorney was subjected to emotional and physical stresses of various kinds and suffered occasional chest pains, culminating in a heart attack at home; and such as that in Matter of Masse v. James H. Robinson Co., 301 N.Y. 34, 92 N.E.2d 56 in which, indeed, Lerner seems to have been one of the authorities upon which the unsuccessful respondents, as well as the Appellate Division, largely relied (pp. 36-37, 92 N.E.2d p. 57); but whether or not the stricter standard of Lerner remains unmodified, the record before us clearly discloses accident, even within the Lerner rule. It would seem difficult to find an act and event which could be more properly described as 'determinate' and 'catastrophic' than this sudden neck collapse, following trauma and strain which, to repeat the language of claimant's neurologist, 'could contract and trigger the mechanism which would throw that neck into spasm and start the whole * * * cycle going.' Certainly the sudden and dramatic collapse of claimant's neck was evidence of accident at its clearest. It seems impossible to make any legal distinction between a collapse of this nature, following three months' exposure to draft and abnormal posture, and the classic cardiac collapse following days or months of strain, for which awards are now made as a matter of course. (See, e. g., Matter of Schechter v. State Ins. Fund, 6 N.Y.2d 506, 190 N.Y.S.2d 656, 160 N.E.2d 901, supra.) 'We think the average man would say that so swift and harsh a disablement was an accidental injury when it was so strangely suffered in the ordinary day's work'; as was said in Matter of Lurye v. Stern Bros. Dept. Store, 275 N.Y. 182, 185, 9 N.E.2d 828, 829, in which, upon facts quite similar to those before us, the Court reinstated an award and distinguished Lerner, saying (at pp. 184-185, 9 N.E.2d at p. 828): 'In the Lerner case the employee passed from a hot room into a cold one. The specific result was something that was almost as likely to occur as not. What was presented, the court said, was 'a case of ordinary exposure resulting in a cold.' We thought that to the average man there would seem to be no accident in such a sequence of events. * * * In the case at hand the claimant was struck by air propelled by the fan. The result was 'palsy which is limited to one side of the face and is acute in onset and called Bell's'--with consequent distortion of the parts and of the powers of expression'; the Court thereupon finding that 'swift and harsh * * * disablement' an accidental injury.

The case for decision is, also, clearly within the class of gradual-injury cases recognized by Dean Larson, who says: 'It has generally been assumed that the accident concept includes an element of reasonable definiteness in time, as distinguished from gradual disintegration or deterioration * * * It has been shown above that the concept of time-definiteness can be thought of as applying to either the cause or the result. A relatively brief exposure to fumes, dust or cold may lead to a protracted period during which the victim gradually succumbs to disease; conversely, months or years of exposure to poisons, jolts or strains may lead to a sudden collapse on a particulary day. In either case it is relatively easy to satisfy the definite-time requirement by merely accepting the view that suddenness may be found in either cause or result.' (1 Larson, Workmen's Compensation Law, § 39.10; emphasis supplied.) Discussing the compensable gradual-injury cases which he classifies as to 'suddenness of result', the same author observes that 'in various situations an otherwise-gradual kind of deterioration may culminate in an obvious and sudden collapse or structural change whose incidence can fix the date of accident clearly. Weeks of overwork and strain may lead to coronary thrombosis; several days' work in heat may cumulatively produce heat prostration; twelve hours' glare of the sun may finally bring on snow blindness; repeated jarrings or strains may ultimately lead to a hernation of an intervertebral disc; or a long period of working in a strained crouching position may culminate in a 'dropped foot.' An examination of the unsuccessful cases will reveal very few in which a clean-cut collapse occurred.' (Op. cit., § 39.30.)

Consistently with these concepts, the repeated insults of the cold air and the postural strains over a period exceeding three months, culminating in a sudden collapse, all as found in this case, are paralleled by the automobile repairman's exposure to carbon monoxide gas over a period of two years, until on a particular day he had a dizzy spell and fainted and two years later died of endocarditis, found the result of accidental injury caused by his inhalation of the gas. (Matter of Reichard v. H. H. Franklin Mfg. Co., 223 App.Div. 797, 228 N.Y.S. 17, affd. 249 N.Y. 525, 164 N.E. 570.) The facts here are comparable, also, to the molder's day-to-day twisting and turning of his body as he dipped and poured molten metal, until the specific occasion when he felt a sensation like a shock in his neck and was found, as was claimant-respondent here, to have myositis caused by industrial accident. (Matter of Pioli v. Crouse-Hinds Co., 281 App.Div. 737, 117 N.Y.S.2d 734, supra.) The basic proof here is also comparable to that of the repeated traumas and burns sustained by a presser using a steam iron, resulting, some time and burns apparent healing, in a ruptured artery. (Matter of Neilson v. Michael Stern & Co., 282 App.Div. 793, 122 N.Y.S.2d 472, mot. for lv. to app. den. 306 N.Y. 980, 115 N.E.2d 439.) (See, also, Matter of Robbins v. Enterprise Oil Co., 252 App.Div. 904, 299 N.Y.S. 837, affd. 278 N.Y. 611, 16 N.E.2d 123.)

The cases cited in the dissenting opinion are inapposite, because, as seems abundantly clear, the specificity lacking in those cases, and constraining denials of awards, is present in this.

The decision should be affirmed.

Decision affirmed, with costs to the Workmen's Compensation Board.

TAYLOR, AULISI and HAMM, JJ., concur.

REYNOLDS, J., votes to reverse, in an opinion.

REYNOLDS, Justice (di...