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Meyer v. A. Hollander & Son, Inc.

Supreme Court of New York, Appellate Division

December 28, 1954

Meyer
v.
A. Hollander & Son, Inc.

Page 196

APPEAL from an award of the Workmen's Compensation Board, filed July 20, 1950, for compensation under the Workmen's Compensation Law.

COUNSEL

John E. Knauf for appellants.

Joseph C. Spano for claimant-respondent.

Merton D. Meeker and Edward C. Halligan for Employers Mutual Liability Insurance Company of Wisconsin, respondent.

Nathaniel L. Goldstein, Attorney-General, for Workmen's Compensation Board, respondent.

BERGAN, J.

The controversy is between carriers. There is no doubt that there was an accident on February 21, 1946, when respondent Employers Mutual was on the risk. Claimant was struck by a pipe, fell and injured his shoulder and sustained a subdeltoid bursitis. On October 18, 1946, he suffered a strain shovelling coal which aggravated the pre-existing condition. The same carrier was then on the risk and no question is raised about these being accidents.

The finding of the board as to the third accident, chargeable to the new carrier, appellant Liberty Mutual, is that 'Due to his strenuous work and unusual exertion of firing the boiler and shoveling of coal in November, 1948' claimant 'was caused to sustain accidental injuries to his left shoulder in the nature of an aggravation of his prior condition of calcified sub deltoid bursitis'.

The finding is not supported by substantial evidence. Nothing in the record shows that shovelling coal was 'unusual exertion' or that there was any 'accident', either as a definite external event leading to a physical consequence; or even as a definite or specific internal physical event.

The proof merely is that generally the 'shoveling' caused an aggravation of a physical condition previously caused. This could lead to either one of two results: (a) it could be treated as a natural result of the first injury and charged to the carrier

Page 197

responsible for that injury--as where a man tries to do his normal work after an injury and has a recurrence; or (b) it might be treated as an occupational disease.

Even with the cases going as far as they have gone, no case has treated a mere physical 'aggravation' of a condition caused by general activity as an 'accident'. There have been 'accidents' where not much has happened externally and a definite event could be demonstrated physiologically, as well as 'accidents' where the only external event demonstrated was 'unusual' exertion; but never any case as general in both aspects as this is. An accident under the ...


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