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Lesnik v. National Carloading Corp.

Supreme Court of New York, Appellate Division

May 11, 1955

Lesnik
v.
National Carloading Corp.

APPEAL from an award of the Workmen's Compensation Board, filed November 27, 1953, for compensation under the Workmen's Compensation Law.

COUNSEL

Morgan F. Bisselle and Warren C. Tucker for appellants.

Jacob K. Javits, Attorney-General (Harry Pastor and Roy Wiedersum of counsel), for Workmen's Compensation Board, respondent.

Peter Keber for claimant-respondent.

Page 650

BERGAN, J.

Claimant in this Workmen's Compensation case is a business executive; to be exact, a vice-president in charge of revenues of the corporate appellant employer. He suffered a heart attack while attending a horse race in California. This incident is the basis of his claim for compensation which the board has allowed.

It could be found readily enough that claimant was at the race track in the course of employment. It was the employer's usual custom that an officer in the territory would make himself available in entertaining a customer. Claimant was traveling in the employer's business in California at that time and went to the race track in connection with the entertainment of a customer by another company official.

It is not, however, demonstrated that anything happened at the race track itself to suggest accidental causation then and there of the physical condition. No stress is shown. Any betting losses which claimant might sustain would be assumed by the company; and the record shows no incident of physical stress or of emotional impact occurring at the race track. The company official who invited claimant to the race track told him he felt it would be 'a form of relaxation' and claimant seems to have accepted this evaluation.

The theory of 'accident' upon which the board has based its award is not that anything particular did happen at the race track in connection with the work; but rather that the claimant before going to the race track had been following an unusually active schedule in efforts to build up revenues with which he was especially concerned and which had been falling off; that he was worn down by this continued effort and suffered the heart attack as a result.

Although there is a finding by the board that the heart attack was 'due to unusual exertion and effort and physical and emotional strain' there is no finding, and there is certainly no proof of, any physical or even emotional strain at the time of its occurrence. The essential finding of the board in this respect is that for five months claimant had been under 'great tension' due to the financial losses of the employer; had been called upon 'to do considerable traveling', and to 'work longer' with increased mental and physical strain.

This is not a compensable accident, looking at the word 'accident' with all the meaning that has been carried to it by administrative and judicial construction. This is not because claimant is an executive. Executives can and do sustain accidents while performing their work. Among other things that

Page 651

will readily come to mind, they may stumble over a rug, or slip on a floor or get a strain lifting a chair. Nor is this event not an accident because claimant was at a race track; it is to be observed ...


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