Claim of Ellis v. Associated Transport, Inc. 39 A.D.2d 1002

Appeals by the self-insured employer from a decision of the Workmen’s Compensation Board, filed March 18, 1971, which rescinded the Referee’s finding of no industrial accident, and from a subsequent decision of the Referee, filed July 27, 1971. Prior to the date of the alleged accident on November 22, 1968, claimant suffered from coronary artery sclerosis with linyoeardial ischemia, or an insufficiency of blood to the heart muscle. On November 20, 1968 claimant drove a tractor-trailer for the employer from Utica to Cleveland. The following day he drove another tractor-trailer from Cleveland to Elmira. On arrival he was not feeling well and experienced some chest pain and shortening of breath. He had little sleep that night. On the following day, November 22, 1968, although he protested, claimant was directed to drive the truck to Brooklyn. By the time he arrived at Scranton he began to have severe pains in his chest and arm and complained of difficulty in breathing. He was then hospitalized. Dr. Rubino testified that claimant probably suffered from angina pectoris which was precipitated by the excessive driving, long hours and little rest. The carrier’s doctor found no causal relation, but admitted that claimant’s driving, after having chest pain and shortness of breath, caused him to have the symptom of angina pectoris. The board found claimant’s work activities, involving long hours of driving, and his continuing to drive after having coronary symptoms were undue strain beyond the ordinary wear and tear of life which aggravated claimant’s pre-existing coronary condition, constituting an accidental injury. The conflicting medical testimony was for the board to resolve, as were the questions of credibility. There is, in our opinion, sufficient evidence in the record to substantiate the board’s findings. (Matter of McCormick v. Green Bus Lines, 29 N Y 2d 246.) Decision affirmed, with costs to the Workmen’s Compensation Board. Appeal from the decision of the Referee dismissed, without costs. Herlihy, P. J., Greenblott, Sweeney and Reynolds, JJ., concur; Staley, Jr., J., not voting.