274 A.D. 160 | N.Y. App. Div. | 1948
This is a submission of a controversy upon an agreed statement of facts. The issue is whether plaintiff, an employee of the Conservation Department of the State of New York, was incapacitated for duty as a natural and proximate result of an accident sustained in service within the meaning of section 65 of the Civil Service Law. The material portion of that statute reads as follows: “ Medical examination of a member under sixty years of age in service for accident disability and investigation of all statements and certifications by him or on his behalf in connection therewith shall be made upon the application of the head of the department in which said member is employed, or upon the application of said member or a person acting in his behalf stating that said member is physically or menially incapacitated for the performance of duty as a natural and proximate result of an accident sustained in service as a member and certifying the time, place and conditions of such service performed by said member resulting in such alleged disability, and that such alleged disability was not the result of willful negligence on the part of said member and that said member should therefore be retired.” (Emphasis supplied.)
Plaintiff has been employed by the Conservation Department since July, 1925. Until April, 1933, he had enjoyed good health. At that time he developed pulmonary tuberculosis and received treatment until January, 1934, when he returned to work. In December, 1936, he suffered a hemorrhage and received further treatment, which included a collapsing of his right lung. He returned to work in November, 1937, but the pneumothorax treatment has been continued ever since. As of January, 1941, he had a quiescent tubercular condition of his left lung, that is, this lung had a small amount of tubercular infiltration which was quiescent. Prior to December 11, 1943, the day of the alleged accident, a physician had seen plaintiff approximately every two weeks, the last occasion being December 6, 1943. The sputum during that time was negative. Plaintiff continued to work from November, 1937, until December 11, 1943.
On the latter date, at about 10:30 in the morning, he was driving a dump truck in the course of his duties in the neighborhood of a bobsled run near Lake Placid, New York. While on the entrance to the bobsled run the truck stopped and when he attempted to get it started he found that the gas line and fuel pump mechanism had been frozen. At the time
Plaintiff urges that he sustained an accidental injury within the meaning of the statute quoted. Defendants contend as a matter of law that the disability of plaintiff is not the natural and proximate result of an accidental injury, and that, therefore, plaintiff is not entitled to an accidental disability retirement allowance pursuant to statute.
Ordinarily the issue as to whether one has sustained an accidental injury is a question of fact, and there is a mass of cases on the subject. It would serve no useful purpose to wander at length in the labyrinth of these decisions because each case has been necessarily decided upon its own particular facts. This is particularly so as to cases under the Workmen’s Compensation Law. However, in construing the New York City Employees’ Betirement System, which is very similar in terms to the statute involved here, it was said by the Court of Appeals: “ To a large degree the issues presented in proceedings under the Workmen’s Compensation Law and the retirement provisions are alike. There is no substantial difference to be perceived between ‘ accidental injury ’ under the former, and ‘ the natural and proximate result of an accident ’ under the latter ” (Matter of Slattery v. Board of Estimate & Apportionment, 271 N. Y. 346, 350). This case also went on to hold that a finding of accidental injury under the Workmen’s Compensation Law was .binding on the New York City Betirement System.
Defendants urge, as a matter of law, that there was nothing catastrophic or extraordinary in the chain of events which caused the reactivation of tuberculosis in plaintiff’s left lung. We think to the contrary that the genetic event was unusual and out of the ordinary as a matter of fact. Assuming the weather conditions were not abnormal for the time and place, as defendants suggest, we do not believe that the freezing of a gas line and pump in a moving motor vehicle to be a usual and common occurrence. If such were the fact the operation of any automobile after the same had been started would be most uncertain in subzero weather. There is nothing before us to indicate that such an occurrence is common. We are, therefore, of the opinion that the happening of such an event would be termed accidental in common speech.
Plaintiff’s exposure and physical effort followed as a matter of course and as a natural consequence of the primary mishap. All of the medical testimony agrees that his subsequent physical disability was the direct result of that exposure and effort. The argument that those elements would not have affected a person of normal health who was native to the area is beside the point. The test of whether bis disability followed
Applying the foregoing principles we conclude that plaintiff’s disability is the natural and proximate result of an accident sustained in service. Judgment, therefore, should be rendered in favor of the plaintiff.
Hill, P. J., Heffernan, Brewster and Deyo, JJ., concur.
Judgment rendered for the plaintiff, without costs, upon an agreed statement of facts.
