Opinion
June 28, 1967
Appeal by the employer and its insurance carrier from decisions of the Workmen's Compensation Board dated July 28, 1966 and September 30, 1966, which affirmed an award of death benefits to the widow of Frank Angelino, the deceased employee. The appellants contend that there was no accidental injury within the meaning of the Workmen's Compensation Law, and that there is no substantial evidence to support the finding that the decedent's activities were sufficiently strenuous to require more than normal exertion and that such activities precipitated the coronary attack causing death. The decedent worked as a doorman at the employer's apartment building on the 4:00 P.M. to midnight shift. On January 26, 1963, the decedent shoveled a three-inch snowfall from the sidewalk in front of the building and, according to his widow, experienced chest pains thereafter. Despite the persistence of the chest pains, he worked his regular shifts on January 27, 28 and 29 and, on January 30, 1963, he used a shovel for 15 minutes to push slush away from an area 10 feet by 8 feet in the street in front of the building. According to a coemployee, this took place at from 4:00 P.M. to 4:15 P.M. and thereafter the decedent followed his usual routine of opening doors until after 6:00 P.M., when the coemployee left to heat water for coffee and, upon returning about three minutes later, found the decedent dead on the floor at 6:20 P.M. This coemployee testified that no snow shoveling was done by decedent after 4:15 P.M. and that the decedent made no complaints after finishing the work. A sworn statement by the deceased building superintendent, not shown to be a witness to the events of that night, was admitted into evidence and indicated that the decedent shoveled snow between 5:50 P.M. and 6:00 P.M. A friend of the decedent testified that the coemployee told him that the decedent complained of pain and died right after shoveling. The employee was recalled, and testified that he had no discussions concerning the decedent with this friend. Claimant's expert, Dr. Brocco, testified that he had previously treated the decedent for angina pectoris and, in response to a hypothetical question which described the shoveling on January 26, 1963 and the two separate shoveling projects on January 30, 1963, gave an opinion that the described work effort precipitated this occlusion. He said, "There was underlying pathology there, but this effort, this degree of effort that this man went through precipitated this occlusion". Claimant's other expert, Dr. Shub, was given the same hypothetical question and rendered an opinion of causal relation based upon the work effort in 28 degree weather. On cross-examination, he stated that he would find no causal relation if the shoveling was done only at 4:00 P.M. because of the time interval between the work and the death without any complaints of pain during the interval. The appellants' expert, Dr. Eidelsberg, testified that, in his opinion, the cause of death was a massive coronary occlusion or thrombosis occurring in and of itself, and was not causally related to his occupation. He stated that the shoveling was not really an exertion, and the temperature was not the cause, since there were no symptoms after the shoveling. He further stated that he would not change his opinion even if there were two shoveling episodes since "There were no complaints, there were no symptoms, absolutely nothing to indicate that he was actually affected thereby". The Workmen's Compensation Board found "that the decedent's activities in shoveling snow shortly before his demise in a cold temperature was sufficiently strenuous to require more than normal exertion and that the effort of shoveling snow in below freezing temperature precipitated the coronary attack which followed. This constituted an accidental injury within the meaning of the law and the medical evidence supports a finding of causal relation." The physical strain and exertion of shoveling snow in below freezing temperature have been held sufficient to satisfy the requirement of ususual and excessive strain and to constitute an accidental injury within the meaning of the Workmen's Compensation Law ( Matter of Bleich v. 63rd Bldg. Corp., 15 A.D.2d 584, mot. for lv. to app. den. 11 N.Y.2d 643; Matter of Kneen v. Vestal Methodist Church, 2 A.D.2d 614; see, also, Matter of Shefick v. Lefrak, 11 A.D.2d 828). The appellants object to the board's reliance on the hearsay testimony of the claimant, the deceased superintendent, and the friend of the decedent. Hearsay testimony is, however, admissible under section 118 Work. Comp. of the Workmen's Compensation Law. The hearsay testimony is also sufficiently corroborated by other testimony as to the facts and circumstances. Issues of fact involving contradictory testimony and the credibility of witnesses are for the board to determine. ( Matter of Luftig v. Stevenson Pie Co., 23 A.D.2d 920, affd. 18 N.Y.2d 734; Matter of Baum v. B B Auto Works, 15 A.D.2d 616, mot. for lv. to app. den. 11 N.Y.2d 642 .) The choice between conflicting medical opinions is exclusively in the board's domain if its decision is supported by substantial evidence. ( Matter of Palermo v. Gallucci Sons, 5 N.Y.2d 529; Matter of Hassell v. Oxford Filing Supply Co., 16 A.D.2d 534.) Upon this record, there was substantial evidence to sustain the finding of the board. Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.