Document 2JKGnrmdQ9B00OVBo4bZVe4N

FILE NAME Insurance Industry INS DATE 1956 June 14 DOC INS024 DOCUMENT DESCRIPTION Article from The National Underwriter - Occupational Disease Big Field for WC Awards Stone Tells Self Insurers Jun1e4 , 1956 NATIONAL UNDERWRITER P34 P34 Occupational Disease Big Field for WC Awards Stone Tells Self Insurers The broad application of the substantial evidence rule during the past year in workmen's compensation cases in New York has led to a slight but evident tightening of the requirements for proof of a claim Solon J. Stone of Kenefick Bass Letchworth Baldy & Phillips Buffalo law firm told SelfInsurers Assn at its annual meeting in New York City He said he does not think it is quite so easy today as it formerly was for a claimant to establish his case though the courts are as liberal as they possibly can be in their interpretation of the law He also thinks that New York Work- men's Compensation Board has decided that the big field for the making of awards is in occupational disease rather than in accidents and that the courts have given the board the go sign in this regard The definition of accident may be tightened up but at the obtain same time an award it may be easier to in a case in which there was no accident than it was a few years ago The case of Lesnik vs National Car- loading Corp. presents the opportunity for a new start on the definition of accident he feels In this case the claimant was president of the firm He suffered a heart attack while attending a horse race in California He was awarded compensation by the WC board but the appellate court re- versed the board's finding The theory of accident upon which the board based the award was that the claimant be fore going to the race track had been following an unusually active schedule of work in an effort to build up rev- enues with which he was especially concerned and which had been falling off The claimant was worn down by this continued effort and suffered the Howto draw Full House Your clients need life insurance too And you should be making the extra profit dollars that go with selling it to them Are you WRITE TO CHIO STSATE TATE THETHE LIFE COLUMBUS Company A COMPLETE LINE OF LIFE HEALTH ACCIDENT AND HOSPITAL COVERAGE AMUSEMENT PARKS & CARNIVALS LIABILITY COVERAGES One Day- Day- Weekly Or Full Season ALL OPERATIONS PRIMARY and EXCESS Applications Furnished Upon Request RATES COMPETITIVE GRIFFITHS TATE LTD 4 309 W. Jackson Blvd. WAbash 2-7577 T. C. ANDERSON Vice Chicago 6 III Teletype CG 2785 heart attack as a result The decision of the appellate divi- sion of the New York court was di- vided three for reversal and two against The case has been presented to the appeals court If the majority opinion is affirmed Mr. Stone believes it will represent a plateau from which defense representatives can work with some certainty on the subject of what constitutes an accident The majority opinion specifically states that the injuries rose out of and in the course of employment he said However the majority was unable to find that an accident had oc- curred and reversed the decision and dismissed the claim In reversing that no eventful demonstrated to the majority stated happening had been have caused the in- jury that the injury's only connection with the work was a gradual physical deterioration over a period of time It is settled the majority said that this kind of physical deterioration is not accidental in the sense of the WC law It was admitted that in the development of the theory of industrial accidents in heart cases a policy of marked liberality has been followed but the majority held that such cases require an external event in connection with the work The dissenting opinion which may become the controlling opinion in the event of a reversal by the court of appeals was that since there was proof that the claimant was under unusual mental and physical strain and had been for a period of months and since there was proof that this effort and strain brought on the heart attack it was merely fortuitous that the actual blow fell when he was at a race track In another decision on the subject of accident Meyer vs Hollander & Son the WC board had ruled that the claimant who had sustained a previous injury had another accident caused by aggravation of a existing phy- sical condition in the course of his un- usual work of shovelling coal The appellate court held that on such proof the aggravation of the previous condition can be treated either as a natural result of the first injury or as an occupational disease but that it cannot be treated as a new accident because no unusual physical event at- tributable to the work caused the condition The decision if it is affirmed by the appeals court will have more far reaching effects than any in recent years in Mr. Stone's opinion It opens the door for a large new field of liability and places upon the employer the burden of weeding out his physically defective employes In this case Detenbeck vs General Motors the claimant was found disabled by the occupational disease of back strain with nerve root irritation of the back with pain and numbness of the left and foot due to his occupation as salvage inspector at an automobile plant The plant physician testified that backaches never occur to normal men on the job of salvage inspector without an accident Four other physicians testified similarly However they said the disability occurred to this claimant because of a existing congenital defect in his back The appellate division affirmed the award and stated that all employes who had the same weakness would in all probability be similarly affected which is sufficient to bring the condition within the classification of an occupational disease Mr. Stone gleans from this that the appell no lo with ; tablish he suf in and which said 4 empha disease the no The subjec sation disease dition ner co hidder as the said would In i indica the ba not on but of The f the co Steved a mar work : and th chine ployer ries in The broade stitute ment the D appeal the al which in a fa period emplo that walk part o The award who a suits f appell mitted which widow sultan ure bc ami a there to reti Suic availal are it of exti Mr. S possib Howe year defens The sion o effect suicide presun been tificate death engine dent's fall in fallen tion ties ar tive a The pears part o Of the tion a centag findin~fl NATIONAL UNDERWRITER 1936 June 14 1 June 14 ; ease Big Field for WC lls Self Insurers Le subne past n cases at the obtain same time an award it may be easier to in a case in which there was no accident than it was a ht but rements few years ago The case of Lesnik vs National Car- -tone of aldy & d Selfmeeting oes not loading Corp. presents the opportunity for a new start on the definition of accident he feels In this case the claimant was president of the firm He suffered a heart attack while y as it estab rts are ^ be in Workdecided ting of , rath at the the go tion of up but attending a horse race in California He was awarded compensation by the WC board but the appellate court reversed the board's finding The theory of accident upon which the board based the award was that the claimant before going to the race track had been following an unusually active schedule of work in an effort to build up revenues with which he was especially concerned and which had been falling off The claimant was worn down by this continued effort and suffered the How draw Le a a Full House Your clients need life insurance too And you should be making the extra profit dollars that go with selling it to them Are you TATE LIFE * OHIO E HEALTH ACCIDENT AND HOSPITAL COVERAGE ^ ARKS& CARNIVALS Week-lOy r Full Season L OPERATIONS and EXCESS Furnished Upon Request ES COMPETITIVE HS TATE LTD C. ANDERSON Pres Chicago 6 III Teletype CG 2785 heart attack as a result The decision of the appellate division of the New York court was di- vided three for reversal and two against The case has been presented to the appeals court If the majority opinion is affirmed Mr. Stone believes it will represent a plateau from which defense representatives can work with some certainty on the subject of what constitutes an accident The majority opinion specifically states that the injuries rose out of and in the course of employment he said However the majority was unable to find that an accident had oc- curred and reversed the decision and dismissed the claim majority In reversing the that no eventful happening stated had been demonstrated to have caused the in- jury that the injury's only connection with the work was a gradual physical deterioration over a period of time It is settled the majority said that this kind of physical deterioration is not accidental in the sense of the WC law It was admitted that in the development of the theory of industrial accidents in heart cases a policy of marked liberality has been followed but the majority held that such cases require an external event in connection with the work The dissenting opinion which may become the controlling opinion in the event of a reversal by the court of appeals was that since there was proof that the claimant was under unusual mental and physical strain and had been for a period of months and since there was proof that this effort and strain brought on the heart attack it was merely fortuitous that the actual blow fell when he was at a race track In another decision on the subject of accident Meyer vs Hollander subject Son the WC board had ruled that the claimant who had sustained a previous injury had another accident caused by aggravation of a existing physical condition in the course of his un- usual work of shovelling coal The appellate court held that on such proof the aggravation of the previous condition can be treated either as a natural result of the first injury or as an occupational disease but that it cannot be treated as a new accident because no unusual physical event attributable to the work caused the con- dition The decision if it is affirmed by the appeals court will have more far reaching effects than any in recent years in Mr. Stone's opinion It opens the door for a large new field of liability and places upon the employer the burden of weeding out his physically defective employes In this case Detenbeck vs General Motors the claimant was found disabled by the occupational disease of back strain with nerve root irritation of the back with pain and numbness of the left leg and foot due to his occupation as salvage inspector at an automobile plant The plant physician testified that backaches never occur to normal men on the job of salvage inspector without an accident Four other physicians testified similarly However they said the disability occurred to this claimant because of a existing congenital defect in his back The appellate division affirmed the award and stated that all employes who had the same weakness would in all probability be similarly affected which is sufficient to bring the condi- tion within the classification of an occupational disease Mr. Stone gleans from this that the it appellate division believes that no longer necessary for a claim to with a existing condition tablish that the condition from wh he suffers is one commonly inher in and concomitant to the work fr which the condition derives Thus - said the appellate division shifts occupati emphasis in determining disease from the nature of the job the nature of the employe y The idea that the employer maycompet subjected to the payment of compet sation to an employe who suffers discase because of a existing dition so long as the job in some m bris ner contributes to the end result hidden liability which reaches as bris Star as the imagination extends Mr. said It could be that this liabl would extend even to heart cases In the past year there be have broadening indications of further & the basis of award that an injury m not only arise out of the employme but occur in the course of employme The furthest advance was made the court of appeals in Doca vs Feder Stevedoring Co. The decision was th a man who had completed his work and left his employer's proper and thereafter was injured by a chine owned and operated by his ployer had sustained accidental in ries in the course of his employme The Doca case seems to represent broadening of the base of what the stitutes in the course of empl ment However within a month a the Doca case had been decided a appeals court reversed the decision* the appellate division in a case which the claimant had been injur in a fall on the street during her he period while she was away from employer's premises The court he s that there was no proof that the walk on which the claimant fell ** part of the premises of her employe The courts also continue to awards to employes on business t who are injured while engaged in pr T suits for pleasure Mr. Stone said appellate division reversed and T mitted which widow best a decision of the WC refused compensation to * of a New York City tax * sultant who was drowned on a plea X- ure boat trip he had taken out of ami after completion of his busines there but before it was time for busines to return to New York Suicide available and intoxication as defenses but are seld when the are it seems that the cases are alway of extreme importance to the litigas Mr. Stone said It is practically possible to establish either he believes p However in one case during the year intoxication was accepted at defense The appeals court reversed a der sion of the appellate division to effect that a decedent had commit suicide It held four to three that - presumption against suicide had af been overcome by the coroner's cause af tificate listing suicide as a death and by the expert opinion of engineer that dent's height a person of the day could not accident he fall in the manner in which fallen and that the proof of mo tion because of matrimonial diffic ties and a moody and uncommun^ CH tive attitude was insufficient The substantial evidence rule pears to be firmly established ar , q part of the WC law Mr. Stone Of the many cases in which the q small tion arose a comparatively centage resulted in reversal q of findings of the board Hold H ~~ the additi much less policies w Overlaps mon betw harmless a ed out E wherein th responsible can be a co These cost into the c cannot be might app and not the bills Furthern provisions ment relat of the ind the uncon gence of t a contr asserted tion wheth it not be a ple to plac their sole ! others w ter he ask to the long comm tach tort : burdens on Courts of and effe Several of effort be m that would Such stand ** exists M largely fro general con tute of Arch ing constru Industrial agreement lability lability fro titors parti purchase legal form b insuffici for which contractual problem he Hold harn undertaken real underst Mr. Bot Crowle ccurs react what w standard for the agree attention to ... He recom that the ascertain manding of reached it to all partie vision that a Industry s i NINSUF INSUF INSUF Pe SINCE U 1875 SAN FRAI her