Opinion
May 15, 1967
Appeal by the employer and carrier from decisions of the Workmen's Compensation Board making an award of death benefits. The deceased employee worked as a shipper in a warehouse. On November 21, 1962, he was engaged in unloading with a hand truck 50 boxes of clothing from an elevator, each weighing approximately 60 pounds, and placing them aside for shipment. This work was performed between 8:00 A.M. and 8:30 A.M. and, when he had finished, he told another employee in the building that he felt he had "pulled something loose in his chest." He continued to perform his normal work until 11:30 A.M., during which period he did not exhibit any signs of physical discomfort, and appeared to be his usual self. About 11:30 A.M. he complained that he could not get his breath, was perspiring profusely, and said he was nauseous. He was immediately taken to the hospital by ambulance where he died about an hour later. An electrocardiagram, taken prior to his death, showed an anterior myocardial infarction. The appellants challenge the medical evidence as to causal relationship between the death and the employment. Claimant's witness, Dr. Ensworth, based his opinion of causal relationship upon a hypothetical question which misstated the time period between the decedent's first complaint and his collapse as "within minutes," when the conceded fact is that it was three hours. Dr. Ensworth was asked whether, in his opinion, the death was causally related to the "work effort of that morning immediately preceding his collapse", which he answered affirmatively. He testified that his opinion was based on the fact that the decedent died apparently within an hour of the time he first complained of pain. Claimant's other medical witness, Dr. Kilgore, attended the decedent in the hospital and filed two "proofs of death." The first stated that there was no causal relationship between the decedent's work and his death, and the second and later one, stated that there was causal relationship. His explanation for the change was that he was ignorant of the terms, accident and injury, as used by the Workmen's Compensation Board. On cross-examination, Dr. Kilgore was asked for his opinion of causal relationship if the severe onset of chest pain occurred several hours after decedent's complaint of the sensation in his chest during which time he went about his ordinary activities. Dr. Kilgore answered that continued working after the onset of pain, regardless of when the pain started, might be a contributing factor in any activity that would increase the heart rate or the need for the heart muscle to pump more blood and could make the condition worse. However, this answer did not relate to the time of the sensation in the chest, but rather to the time of the onset of pain which immediately preceded the collapse. Both medical witnesses for the claimant testified that there was no evidence of previous heart disease relative to the decedent. Dr. Sprinkle, appellants' medical witness, emphatically denied that there was any causal relationship between decedent's work and the accident. The question of whether or not the finding herein of causal relationship between accident and death, is supported by substantial evidence, is a close one. The opinions of Dr. Ensworth and Dr. Kilgore were based upon an erroneous hypothesis. "`Opinion evidence to be of any value must rest on a sound hypothesis and if that is without support in the evidence the opinion based thereon is without probative force.'" ( Matter of Harden v. Fahrenkopf Reufle, 229 App. Div. 1, 2; Matter of Nazzaro v. Angelilli, 217 App. Div. 415.) In our opinion the testimony of claimant's medical witnesses was insufficient to support the award. The failure of any express opinion of causal relationship based on the actual facts as they existed on the day of decedent's death, leaves the record bare of the evidence required to satisfy the substantial evidence rule. ( Matter of Kopec v. Buffalo Brake Beam-Acme Steel Malleable Iron Works, 304 N.Y. 65; Matter of Backstrom v. Turner Constr. Co., 284 App. Div. 368.) The determination of the board to entertain claimant's appeal from the Referee's decision in the interest of justice was properly within its jurisdiction. (Workmen's Compensation Law, § 123, Matter of Parella v. Harrod Steel Erection Co., 19 A.D.2d 451; Matter of McSweeney v. Hammerland Mfg. Co., 275 App. Div. 447, mot. for lv. to app. den. 275 App. Div. 1005.) The claim herein was filed on February 15, 1963 and the latest decision appealed from was filed April 6, 1966. It is regrettable that this reasonably clear death claim, in which there has already been unnecessary delay must be remitted because of substantial error in the framing of the hypothetical question, and we urge that upon this remittal the matter proceed promptly without further delay. Decisions reversed, and matter remitted for further proceedings not inconsistent herewith, with costs to appellants against the Workmen's Compensation Board. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.