Hrynkiw v. Davis & Lyon
| Decision Date | 28 December 1967 |
| Citation | 21 N.Y.2d 681,234 N.E.2d 453,287 N.Y.S.2d 415 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | , 234 N.E.2d 453 In the Matter of the Claim for Death Benefits, etc. made by Maria HRYNKIW, Widow, etc., Appellant, v. DAVIS & LYON, Employer, et al., Respondents, Workmen's Compensation Board, Respondent. |
Appeal from Supreme Court, Appellate Division, Third Department, 24 A.D.2d 1056, 265 N.Y.S.2d 321.
Widow brought compensation proceeding against employer and its insurance carrier to recover compensation for death of her deceased husband. Deceased, who was thirty-five years old, was working as a painter in construction of a new home. He was last seen alive about 11:45 a.m. when he appeared to be perfectly normal. Shortly after noon time he was found lying on the floor dead with a pool of blood under his mouth. An exhaust fan was on the floor nearby and it exhibited blood, from which it was inferred that facial lacerations causing the blood were incurred when the deceased fell. The Workmen's Compensation Board made an award in favor of the widow. The Board, after noting that there was a little pool of blood under the mouth of the deceased and that the cause of death, as determined on autopsy was asphyxiation, found 'in the absence of substantial evidence to the contrary' that the fall was not induced by any pre-existing pathological disorder but wasaccidentaland arose out of and in course of employment. It was apparent from the language 'absence of substantial evidence to the contrary' used by the Board that the Board was relying on the presumption of Section 21 of the Workmen's Compensation Law, Consol.Laws, c. 67.
The Appellate Division, Herlihy, J., reversed the Board's decision and dismissed the claim, and held that evidence established that the death of the deceased was the result of ventricular fibrillation and was insufficient to sustain the finding of the Board that death was caused by asphyxiation in view of testimony of heart specialist.
The widow appealed to the Court of Appeals.
Order affirmed, without costs.
All concur.
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Russell v. Southwest Grease & Oil Co.
...accident, within the meaning of the statute.' So also in Hrynkiw v. Davis & Lyon, 24 App.Div.2d 1056, 265 N.Y.S.2d 321, aff'd, 21 N.Y.2d 681, 234 N.E.2d 453 (1967), a painter was found dead on the premises where he had been working. It was held that a presumption cannot be used as a substit......
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