Claim of Pessel v. R. H. Macy & Co.

40 A.D.2d 746, 336 N.Y.S.2d 814, 1972 N.Y. App. Div. LEXIS 3633

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1972
• Status: Published

Opinion

Appeal from a decision of the Workmen’s Compensation Board, filed November 18, 1971. The board found that claimant had sustained an industrial accident resulting in myositis of the cervical spine. The board further found that “ claimant worked in an area where the air conditioning ducts expelled cold air that created draughts that struck claimant’s neck activating an underlying arthritic condition and produced symptoms and constitutes an accidental injury arising out of and in the course of employment ”. Appellant urges that this ease lacks that element of suddenness of onset or result necessary for a finding of accident. We do not agree. Claimant testified that the air conditioning system “ did not always work well * * * Sometimes it was ice cold” and the cold blasts struck her neck and shoulders. The board could properly find that the sudden, irregular icy blasts constituted a situation different from that occurring where the work environment is one of constant and continuous exposure to steady cold. (Matter of Lurye v. Stern Bros. Dept. Store, 275 N. Y. 182.) Furthermore, claimant’s sudden pains were sufficient to satisfy the test of suddenness of result (Matter of Greensmith v. Franklin Nat. Bank, 21 A D 2d 576, affd. 16 N Y 2d 973). Decision affirmed, with costs to the Workmen’s Compensation Board. Staley, Jr., J. P., Greenblott, Cooke and Kane, JJ., concur; Reynolds, J., dissents and votes to reverse and dismiss in the following memorandum: I vote to reverse and dismiss the claim on the grounds that the facts produced do not constitute an accidental injury arising out of and in the course of employment.