DeCarlo v. Bergamini

• Decision Date: 21 June 1962
• Parties: Claim of Mrs. Frances DeCARLO (Joseph DeCarlo, deceased), Respondent, v. Frank BERGAMINI et al., Appellants, Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 276

229 N.Y.S.2d 276

16 A.D.2d 1001

Claim of Mrs. Frances DeCARLO (Joseph DeCarlo, deceased), Respondent, v. Frank BERGAMINI et al., Appellants, Workmen's Compensation

Board, Respondent.

Supreme Court, Appellate Division, Third Department.

June 21, 1962.

Joseph M. Soviero and Louis Busell, New York City, for appellants.

Friedman, Welsh & Battisti and James J. Battisti, Jr., Catskill, for claimant.

Louis J. Lefkowitz, Atty. Gen. (Roy Wiedersum and Jorge L. Gomez, Asst. Attys. Gen., of counsel), for Workmen's Compensation Board.

Before BERGAN, P. J., and GIBSON, HERLIHY, REYNOLDS and TAYLOR, JJ.

MEMORANDUM DECISION.

This is an appeal by the employer and insurance carrier from a decision of the Workmen's Compensation Board which held that the decedent's subsequent disability and death were causally related to an alleged accident of November 12, 1956, and which further held that the employer was not prejudiced by the failure of the decedent to give notice of accident within thirty days as required by Section 18 of the Workmen's Compensation Law.

The appellants contend that the record does not contain substantial evidence that the disability and death of the employee were causally related to the accident of November 12, 1956.

There is no dispute that on the above date the deceased employee, while working for the appellant-employer, suffered some chest pain after exerting unusual effort to keep an extension ladder from falling to the ground after the ladder was caught by a gust of wind. Thereafter, the employee continually complained of chest pains, but worked until December 3, 1956, at which time he went into shock and exhibited the 'classical symptoms of coronary infarction'. He informed the doctor he did not seek medical treatment after the initial attack on November 12, 1956 because he thought the pain was caused from 'nervous indigestion'. On December 3, however, he was not working for the appellant herein and this is the predicate for the argument over causation.

The employee's personal physician stated unequivocally in his 15 Day Report that the December 3rd attack was a result of the November 12th accident and thereafter testified that the employee suffered coronary symptoms on November 12th as a result of the work related strain and that the infarction was chronic from that time until December 3rd when it became acute and he went into shock. This doctor further testified that the employee had a mild arteriosclerosis prior to November 12th but he did not associate this condition with the coronary infarction.

The claimant's specialist, a cardiologist, examined the employee on February 11, 1957 and April 15, 1957 and testified that based on an electrocardiogram the employee suffered a far-advanced cardiac disease prior to the accident. This doctor also said that the employee, in his opinion, suffered a coronary occlusion or hemorrhage on November 12th and that the December 3rd incident was a more severe episode. This doctor admitted that the November 12th occurrence might possibly have been an angina attack, but he did not in any way change his opinion that it was a coronary occlusion or hemorrhage. He also testified that such a coronary episode would certainly shorten a man's life.

The carrier's specialist, a cardiologist, testified that in his opinion the employee had suffered a myocardial infarction on December 3rd, but not on November 12th, and that death was not related to the episode of...