Nichols v. C.N.Y. Bottle Co.

• Decision Date: 10 October 1985
• Citation: 494 N.Y.S.2d 172,114 A.D.2d 555
• Parties: In the Matter of the Claim of Gloria J. NICHOLS, Respondent, v. C.N.Y. BOTTLE COMPANY et al., Appellants, et al., Respondent. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 172

494 N.Y.S.2d 172

114 A.D.2d 555

In the Matter of the Claim of Gloria J. NICHOLS, Respondent, v. C.N.Y. BOTTLE COMPANY et al., Appellants, et al., Respondent Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division Third Department.

Oct. 10, 1985.

McDonough, Digby & Connelly, Syracuse (John F. McDonough, Syracuse, of counsel), for appellants, et al., respondent.

Robert Abrams, Atty. Gen., New York City (Michele M. Woodard and Carlin Meyer, Asst. Attys. Gen., New York City, in charge of Labor Bureau), for Workers' Compensation Bd., respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

MAHONEY, Presiding Justice.

Appeal from an amended decision of the Workers' Compensation Board, filed November 1, 1984, which ruled that claimant's decedent sustained an accidental injury in the course of his employment and awarded benefits.

Decedent was employed by C.N.Y. Bottle Company when, on January 4, 1979, during his work shift, he suffered a fatal heart attack. Claimant, decedent's widow, filed a claim for death benefits which was controverted by the employer and its carrier. After a hearing, a Workers' Compensation Law Judge found decedent's death to be compensable and awarded claima benefits. Upon review, the Workers' Compensation Board affirmed. The employer and carrier now appeal, contending that decedent's death was not causally related to his employment and that claimant is not a widow entitled to benefits.

While the employer and carrier offered some evidence that the work performed by decedent on the day in question was routine, there was ample evidence that the work was strenuous. Further, there was expert medical evidence that the type of work performed by decedent could precipitate a heart attack. Given the conflicting evidence, resolution of this issue was within the province of the Board (see, Matter of Gates v. McBride Transp., 60 N.Y.2d 670, 468 N.Y.S.2d 101, 455 N.E.2d 660; Matter of Carpino v. Treasure Chest Rest., 106 A.D.2d 782, 483 N.Y.S.2d 817, mod. on other grounds 65 N.Y.2d 782, 492 N.Y.S.2d 948, 482 N.E.2d 566). Therefore the Board's finding of causally related accident is supported by substantial evidence.

The employer and carrier also contend that claimant was not decedent's widow at the time of his death, apparently alleging that they were separated at the time. It is true that a claimant has the burden of proof of establishing status as a widow (see, Matter of Hess v. Dairymen's...