Opinion
June 16, 1961
Appeal from a decision and award of the Workmen's Compensation Board. The decedent operated a 60,000-pound power bulldozer which in heavy construction operations is used to push an earth-moving "scraper" weighing 55,000 pounds. The "dozer" is 22 feet long; the scraper 48 feet long. The job of managing this equipment at the controls of the "dozer" is called a "push cat" operator. The operation of the dozer was described as "about five times" as complicated as operating a car. The dozer is steered by two brakes and two clutches. The brakes are not power brakes. A witness testified the operator has to "use quite a lot of strength" on the brakes and "you got to come on to them pretty hard". Although the clutch control seems actuated by power, it was testified that it was necessary for the operator "to get force enough to push up for heavy springs to engage that in there". For this, the witness said, "you have to have strength". As to the part that the hands and arms of the operator played, it was testified that "He's using them all the while, he has two levers to steer with, he has two hoists to run back of him with one arm". The over-all description of this job is that "it is hard work". Added to the physical work was tension; it was a "nerve job". The decedent had previously been an oiler. For about two weeks before his death he had been working as a "push cat" operator. It is a fair inference from the record this was harder work than that of an oiler. Although decedent had been previously in good health, shortly after he started as a "push cat" operator he began to develop cardiac symptoms, i.e., "he kept complaining about this pain in his lungs." On September 13, 1957 decedent encountered special difficulties in the movement of earth material because of the wetness of the soil. A witness testified "they were down in this mud having a hard time". Shortly after decedent stopped work he complained of illness, saying "I got a burn in my stomach"; and "he said he didn't feel well". Within a short while after he reached home after he had stopped work decedent became acutely ill. A physician found him gasping for breath and received a history that decedent "had a hard day and hard work". Three hours later the physician was recalled and decedent died while the doctor was present. The cause of death was given as lung embolism after coronary occlusion. There is adequate medical evidence associating the strenuous physical nature of decedent's work, accentuated somewhat by the emotional tension, with his death. This is an accident within the New York Workmen's Compensation Law. Award affirmed, with costs to the Workmen's Compensation Board.
I concur in the finding of the majority on the sole ground that recent heart cases have decided that the performance of causally related strenuous physical work, although the ordinary and regular job activity, is sufficient to constitute a heart accident. That being the test, a "push cat" operator engaged in heavy construction work, such as described in the majority decision, meets the required standards. (See Matter of Domash v. Standard Coat, Apron Linen Serv., 11 A.D.2d 575, 576, affd. 9 N.Y.2d 889; Matter of Sczesniak v. Whitney, 12 A.D.2d 366, 368; Matter of Schecter v. State Ins. Fund, 6 N.Y.2d 506.) In my opinion, the finding of the board of "emotional tensions on the job" was not supported by substantial evidence.