Opinion
December 29, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by the employer and its carrier from a decision and award of the Workmen's Compensation Board granting death benefits to the minor child of decedent. Decedent, age 36, died of occlusive coronary arteriosclerosis. Decedent's functions were primarily clerical in nature but on June 30, 1958, the date of his death, an order had to be readied for shipment and since the employee who would normally have handled the shipment was late in arriving to work, decedent began to prepare the order. While "pulling down" a case containing stuffed toys, weighing between 40 and 50 pounds and with dimensions of approximately 4 feet by 4 feet, from atop another case of approximately the same size, decedent felt a pain in his chest. He, thereupon, stopped work and sat down at his desk. Miss Santos, a coworker, became alarmed and an ambulance was called. Decedent was taken to a hospital and died the same day. The medical testimony is conflicting. Two experts called by appellants denied causal relation between decedent's activities and his death and attributed death to natural causes. Dr. Frucht, the expert called by claimant, while admitting that decedent had extremely narrow coronary arteries which made him vulnerable to death at any time testified that in his opinion decedent's death was causally related to his manipulation of the case filled with toys. Appellants contend that Dr. Frucht's opinion is based on a fact not supported by the record namely, that decedent "lifted" the box containing the toys, and therefore does not constitute evidence upon which the award could be sustained. It is clear from reading the record that Dr. Frucht's opinion is based on the premise that decedent exerted more physical effort than would be required merely to topple one case from on top of the other. However, from the description given by Miss Santos concerning the moving of the case of toys, it is a fair inference that before the case on top could be placed in a position from which it could be slid downward along the side of the case on which it rested, some degree of "lifting" was required. (See Matter of Webb v. Twelve Pine St., 12 A.D.2d 555.) Moreover, since Dr. Frucht had reviewed Miss Santos' testimony as to decedent's activities prior to the attack before answering the hypothetical question, it is not unreasonable to conclude that in using the word "lifting" in response to said question, he was merely describing the whole process by which the decedent "pulled" and "slid" the box to the floor. Appellants cite Matter of Burris v. Lewis ( 2 N.Y.2d 323) and assert that the statement of the Court of Appeals therein that decedent was subjected to no more effort than the ordinary wear and tear of life is applicable to the instant case, but on this record the board could find that the moving of the 50-pound case by decedent entailed greater exertion than the ordinary wear and tear of life ( Matter of Masse v. Robinson Co., 301 N.Y. 34). Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.