8 A.D.2d 553 | N.Y. App. Div. | 1959
Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board. The board found that in the course of claimant’s work of handling boxes of frozen fish, requiring him to go in and out of freezers continuously, he became disabled due to pneumonia; and that due “ to the cumulative effect of the claimant’s work and the nature of his employment and his condition, a quiescent tuberculosis was activated which caused him to become disabled from March 24, 1952”. It was found that the “ pneumonia and tuberculosis was [sic] an occupational disease ”. The board further found that on March 24, 1952, claimant “sustained accidental injuries in the nature of pneumonia with chills, fever, coughing and sweating which, together with the cumulative effect of his work and the nature of his employment and his physical condition, resulted in the activation of a quiescent tuberculosis ”. In our view, the record supports neither the finding of accident nor that of occupational disease.' We consider first the question of accident. Claimant testified that on March 24, 1952, while going in and out of the freezer, he perspired, had a chill, went home and that evening consulted a doctor. He also said, however, that he had complained of feeling badly “ early in the day ”, The board found claimant disabled by reason of tuberculosis from the very day of this incident and indeed his chest expert opined that claimant had tuberculosis on that day. Claimant said that bis work had not changed during the five years preceding that day; that he customarily went in and out of the freezer from 50 to 100 times per day; that nothing unusual occurred on the day in question except his chill. He said, however, that chills “happened off and on” during the five years; and in his claim, prepared by his attorney, he described the “ accident as follows: “ Constantly chilled from working in freezer.” The evidence seems clearly to negate the theory of disease induced by an industrial accident. Inception of the disease is not “ assignable to a determinate or single act, identified in space or time” nor “to something catastrophic or extraordinary ”. (Matter of Lerner v. Bump Bros., 241 N. Y. 153, 155; see, also, Matter of Korn v. Pals <& Solow, 299 N. Y. 575; Matter of Lesnik v. National Carload
