Strauss v. Freiheit

• Decision Date: 04 May 1972
• Parties: Claim of Sylvia STRAUSS, Appellant, v. Morning FREIHEIT et al., Respondents, and Special Funds Conservation Committee, Respondent, Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 520

331 N.Y.S.2d 520

39 A.D.2d 786

Claim of Sylvia STRAUSS, Appellant, v. Morning FREIHEIT et al., Respondents, and Special Funds Conservation Committee, Respondent, Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

May 4, 1972.

David Hoffmann, New York City, for appellant.

Herbert Lasky, New York City (John M. Cullen, New York City, of counsel), for respondents.

George Cholet, New York City, for respondent Special Funds.

Louis J. Lefkowitz, Atty. Gen., for respondent Workmen's Compensation Board.

Before STALEY, J.P., and SWEENEY, KANE, REYNOLDS and GREENBLOTT, JJ.

MEMORANDUM DECISION.

Appeal by claimant from a decision of the Workmen's Compensation Board, filed August 14, 1969, which determined that there was no causal relationship between decedent's death and his work activities.

Decedent was employed as an Assistant Manager and an editorial writer of a newspaper known as 'The Morning Freiheit' for a number of years prior to his death on July 13, 1967. He had sustained a myocardial infarction in 1962 followed by intermittent anginal pain. On the evening of July 12, 1967 he attended a combined board and staff meeting which commenced at about 6:00 P.M. concerning the policy of the newspaper in the aftermath of the Arab-Israeli War. There is evidence that the meeting was held in a hot and crowded room; that the decedent became highly emotional whenever the subject of Israel was discussed; that before 9:00 P.M. he commenced speaking, and as he spoke he became excited and after speaking about five minutes, he suddenly collapsed. He was taken to a hospital where he died the next morning. The hospital records indicate that the cause of death was an acute myocardial infarct. There is conflicting medical evidence in the record as to causal relationship.

A majority of the board determined that 'decedent's work activities on the day in question, of participating in a staff meeting to establish policy and making a speech, neither involved nor induced emotional stress, strain or tension greater than countless differences and irritations to which all workers are occasionally subjected without untoward result, and that the myocardial infarction did not constitute an accidental injury arising out of and in the course of employment.'

Upon this record the board could properly find that decedent's tension involved no more than that to which all workers are occasionally subjected without untoward result. (Matter of Weinstein v. Apex Dress Co., 25 N.Y.2d 947, 305 N.Y.S.2d 157, 252 N.E.2d 634; Matter of Mulholland v. New York State Dept. of Public Works, 34 A.D.2d 1083, 312 N.Y.S.2d 687; Matter of McLoughlin v. New Rochelle Hosp., 34 A.D.2d 1064, 312 N.Y.S.2d 572; Matter of Cramer v. Barney's Clothing Store, 15 A.D.2d 329, 223 N.Y.S.2d 813, affd. 13 N.Y.2d 711, 241 N.Y.S.2d 844, 191 N.E.2d 901; Matter of Santacroce v. 40 W. 20th St. 9 A.D.2d 985, 194 N.Y.S.2d 541, affd. 10 N.Y.2d 855, 222 N.Y.S.2d 689, 178 N,. e.2d 912.)

The board's determination being supported by substantial evidence, it must be sustained.

Decision affirmed, without costs.

STALEY, J.P., and SWEENEY, KANE and REYNOLDS, JJ., concur.

GREENBLOTT, J., dissents and votes to reverse and remit for proper findings in the following memorandum:

The recent Court of Appeals decisions in Matter of McCormick v. Green Bus Lines, 29 N.Y.2d 246, 326 N.Y.S.2d 557, 276 N.E.2d 619 and Matter of Schuren v. Wolfson, 30 N.Y.2d 90, 330 N.Y.S.2d 368, 281 N.E.2d 169 (1972) mandate reversal of the board's decision and remand of the case to the board for proper findings.

The majority of the board found 'that the decedent's work activities on the day in question, of participating in a staff meeting to establish policy and making a speech, neither involved nor induced emotional stress, strain or tension Greater than the countless differences and irritations to which all workers are occasionally subjected without untoward result' (emphasis supplied). Prior to the decisions in McCormick and Schuren the rule was that, to be compensable, the stress or strain must have been greater than the average man's ordinary wear and tear of life (Matter of Weinstein v. Apex Dress Co., 25 N.Y.2d 947, 305 N.Y.S.2d 157, 252...