Claim of Kass v. Sixth Avenue Delicatessen

Appellate Division of the Supreme Court of New York

Claim of Kass v. Sixth Avenue Delicatessen

3 A.D.2d 801, 160 N.Y.S.2d 138, 1957 N.Y. App. Div. LEXIS 6086

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 21, 1957

StatusPublished

This text of 3 A.D.2d 801 (Claim of Kass v. Sixth Avenue Delicatessen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Kass v. Sixth Avenue Delicatessen, 3 A.D.2d 801, 160 N.Y.S.2d 138, 1957 N.Y. App. Div. LEXIS 6086 (N.Y. Ct. App. 1957).

Pincite

Opinion

Appeal by the employer and carrier from a decision and award of the Workmen’s Compensation Board. Claimant, aged 64, had been employed for many years as a counterman in a delicatessen store. On Sunday, October 19, 1952, while carrying a case of beer weighing about 35 pounds, he felt a sharp pain in his chest. He rested for a while, but then continued to work that day and the next, though in pain. Tuesday and Wednesday were his days off and those he spent resting. Wednesday evening, while at home, he again felt severe pain and other symptoms of a heart attack. He was hospitalized the next day. His case was diagnosed as coronary thrombosis with myo[802]*802cardial infarction, and he has been completely disabled ever since. Even though it does not appear that the claimant did any different work on Sunday, October 19, 1952, from that which he usually did, the board was justified in finding that the claimant suffered an unusual strain, which constituted an accident within the meaning of the Workmen’s Compensation Law (Matter of Gioia v. Courtmel Go., 283 App. Div. 40, motion for leave to appeal denied 306 N. Y. 985; Matter of Borra v. Simanoy Country Club, 280 App. Div. 960, motion for leave to appeal denied 304 N. Y. 985). This finding of accident is further supported by the fact that he continued to work after he first felt pain (Matter of Gorlin v. Colgate Aircraft Gory., 276 App. Div. 881, affd. 301 N. Y. 754). On the question of causal relationship, there was the usual conflict in medical testimony. Physicians for the carrier testified that the lifting and carrying of the ease of beer could not have caused the pain that day nor the heart attack three days later. The claimant’s physician testified that the lifting and carrying precipitated the heart attack. This conflict the board resolved in favor of the claimant and on the record its decision was based upon substantial evidence. Award affirmed, with costs to the Workmen’s Compensation Board. Foster, P. J., Coon, Halpern and Gibson, JJ., concur.

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Appeal by the employer and carrier from a decision and award of the Workmen’s Compensation Board. Claimant, aged 64, had been employed for many years as a counterman in a delicatessen store. On Sunday, October 19, 1952, while carrying a case of beer weighing about 35 pounds, he felt a sharp pain in his chest. He rested for a while, but then continued to work that day and the next, though in pain. Tuesday and Wednesday were his days off and those he spent resting. Wednesday evening, while at home, he again felt severe pain and other symptoms of a heart attack. He was hospitalized the next day. His case was diagnosed as coronary thrombosis with myo[802]*802cardial infarction, and he has been completely disabled ever since. Even though it does not appear that the claimant did any different work on Sunday, October 19, 1952, from that which he usually did, the board was justified in finding that the claimant suffered an unusual strain, which constituted an accident within the meaning of the Workmen’s Compensation Law (Matter of Gioia v. Courtmel Go., 283 App. Div. 40, motion for leave to appeal denied 306 N. Y. 985; Matter of Borra v. Simanoy Country Club, 280 App. Div. 960, motion for leave to appeal denied 304 N. Y. 985). This finding of accident is further supported by the fact that he continued to work after he first felt pain (Matter of Gorlin v. Colgate Aircraft Gory., 276 App. Div. 881, affd. 301 N. Y. 754). On the question of causal relationship, there was the usual conflict in medical testimony. Physicians for the carrier testified that the lifting and carrying of the ease of beer could not have caused the pain that day nor the heart attack three days later. The claimant’s physician testified that the lifting and carrying precipitated the heart attack. This conflict the board resolved in favor of the claimant and on the record its decision was based upon substantial evidence. Award affirmed, with costs to the Workmen’s Compensation Board. Foster, P. J., Coon, Halpern and Gibson, JJ., concur.

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3 A.D.2d 801, 160 N.Y.S.2d 138, 1957 N.Y. App. Div. LEXIS 6086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-kass-v-sixth-avenue-delicatessen-nyappdiv-1957.

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