Goddu's Case
- Reporters:
- , ,
- Before:
- Wilkins
The widow of a deceased employee appeals from a decree of the Superior Court dismissing her claim for compensation for his death.
The reviewing board affirmed and adopted the findings and the decision of the single member denying compensation. The accident was unwitnessed. The employer was a manufacturer of motorcycles. The employee was a motor tester, who worked on the fourth floor of a five-story factory building. The fifth floor was used as a stock room. On December 12, 1945, the employee was found prostrate on the fifth floor landing. He “obviously” had ascended by a flight of stairs from the fourth floor. He was found by a fellow employee, “who likewise was ascending to the fifth floor to the stockroom to get materials.” He was bleeding from the right ear, nostril, and mouth. Part of the region of the right eye was contused and swollen. After removal to a hospital X-rays revealed a fractured skull. Death occurred on December 21, 1945. An autopsy, so far as is now argued to be material, showed fracture of the skull, subdural and slight epidural hemorrhage, focal contusion and laceration of the brain, coronary sclerosis, myocardial fibrosis, and Senile nephrosclerosis. In his decision the single member stated: “The question to be decided is whether the employee’s injury arose out of his employment. It is apparently conceded that the injury occurred in the course of his employment. There is nothing to show what caused the employee to fall on the level of the fifth floor landing where he was found. No instrument of employment appears to have been involved in his fall. There is no evidence that he struck any object in falling except the floor. It may reasonably be inferred from the evidence that the employee may have sustained a coronary attack which caused him to fall to the floor.”
The first question for determination is whether
That
There is left for consideration the effect to be attributed to the statutory provision that compensability “shall be presumed, in the absence of substantial evidence to the contrary.” This means evidence “such ‘as a reasonable mind might accept as adequate to support a conclusion.’ . Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, 229.” Jordan Marsh Co. v. Labor Relations Commission, 316 Mass. 748, 756.
The evidence before the single member did not constitute “substantial evidence to the contrary.” Dr. Whitney, called as a witness by the claimant, was the sole medical expert. He testified in chief that he saw the employee at the hospital about twelve times, beginning December 12; that the observed symptoms were typical of trauma followed by fracture of the skull, subdural and epidural hemorrhages, and laceration of the brain; and that in his opinion the cause of death was trauma, an opinion in which the several other consultants at the hospital all concurred. On cross-examination by the insurer, he testified that he had obtained a history of a coronary attack two years before; that coronary sclerosis and myocardial fibrosis, revealed at the autopsy, are the hardening of the arteries supplying the heart with blood, and are consistent with the previous coronary attack; that senile nephrosclerosis is hardening of the blood vessels of the kidneys; that the autopsy also showed a large area of fibrosis and some lymphocytic infiltration of the heart; and that that condition is typical of a man who is suffering from hardening of the arteries and has had some coronary disturbance. On redirect examination, he testified that a cardiogram taken two years earlier at the time of the coronary attack and another “taken after this injury were compared and found to be no different”; that the coronary condition had nothing to do with his death; that its cause was the laceration of the brain, which was the result of trauma; and that there was a definite fracture of the skull which resulted in injury to the brain tissue, causing death. On recross-examination, he testified that “it is *402possible for this man” to have had a coronary attack, fallen, and fractured his skull; but that there was no evidence of recent coronary disease. Again examined by the claimant, the witness testified that examination revealed no acute coronary disease upon admittance to the hospital. In response to a question by the single member, the witness stated that in his opinion the employee did not have a heart attack at the time. On further recross-examination, he testified that the condition of arteriosclerosis found at the autopsy probably had been going on for years; that one of the indications of coronary attack is not found in the amount of sclerosis he had, which was “pretty close to normal” and not “more marked than in a man of his years”; and that the appearance of sclerosis is the commonly accepted cause of coronary thrombosis.
It was not enough for the reviewing board to say that it “may reasonably be inferred from the evidence that the employee may have sustained a coronary attack,” causing his fall. Even if warranted, this does not go beyond a finding of a mere possibility. We likewise think that “substantial evidence to the contrary” is not afforded by the absence of evidence to show what caused the fall or that he struck any object except the floor, or by the fact that no instrument of employment appears to have been involved in the fall.
The reviewing board took the position, as does the insurer now, that proof of the injury “will give rise to the statutory presumption only where some connection appears between the accident and the employment,” citing Daus v. Gunderman & Sons, Inc. 283 N. Y. 459. As we have indicated, we think that nothing more is required if the injury arises in the course of the employment. Our conclusion is fully supported by Marra Bros. Inc. v. Cardillo, 154 Fed. (2d) 357 (C. C. A. 3), a case arising under § 20 of the longshoremen’s and harbor workers’ compensation act, 44 U. S. Sts. at Large, 1436, U. S. C. (1940 ed.) Title 33, § 920, the provisions of which are identical with the New York statute cited in a subsequent footnote.
The Daus case itself can be distinguished. The injured *403employee was himself a witness.1 He was a salesman of automobile brakes, and sustained injuries on a highway in his own automobile in a midnight accident, which he testified occurred on his way home after seeing a prospective customer. The State industrial board rejected his testimony as inherently improbable, and there was no occasion to apply the so called statutory presumption. We do not deem it profitable to search out and analyze all the other New York cases, because if they contain anything inconsistent with our present holding, we feel that we are not permitted to follow them. It seems clear, however, that at least some New York cases are in accord with our holding. See Norris v. New York Central Railroad, 246 N. Y. 307; Gallagher v. Mundett Cork Co. 295 N. Y. 576; Welz v. Markel Service, Inc. 296 N. Y. 640. See also Hoffman v. New York Central Railroad, 290 N. Y. 277.
By reason of the effect of
The decree is reversed and a decree is to be entered remanding the case to the Industrial Accident Board for further proceedings in conformity with this opinion.
So ordered.
Notes
The New York workmen’s compensation law (Consol. Laws, c. 67, § 21) is not limited to cases where the employee is killed or cannot testify, but provides that “In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary 1. That the claim comes within the provision of this chapter . . ..” (Italics supplied.)