Claim of Kozlowski v. Rogers

3 A.D.2d 873, 161 N.Y.S.2d 181, 1957 N.Y. App. Div. LEXIS 5892

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1957
• Status: Published

Opinion

Appeal by an employer and his insurance carrier from an award and decision of the Workmen’s Compensation Board which granted death benefits to the widow of a deceased workmen. Decedent was employed as a gasoline service station attendant. His duties required him to look after and maintain the premises of the gasoline station and to service the needs of the employer’s customers. On February 11, 1951 decedent was found dead in the vicinity of one of the hydraulic lifts inside the service station, and his death was found to have resulted from a heart attack in the nature of an acute coronary thrombosis. The award is attacked on appeal on the ground that there is no substantial evidence to support the finding of the board that decedent sustained an industrial accident. There is testimony that on the day of his death decedent worked not only inside of the station servicing cars but also undertook to remove a heavy collection of ice which had accumulated in front of the station. In performing this task he used a snow shovel with which he chopped up the ice. His body was found near a drain cover from which was protruding a screwdriver. The inference could be drawn that decedent was attempting to pry open a drain at the time of the fatal attack. It was well within the board’s fact-finding powers to determine that decedent was required to exercise extra effort and exertion on the day in question. The medical testimony on the issue of causal relation was conflicting but the testimony in support of the claim was sufficiently substantial to justify the finding of the board that decedent’s death arose out of and in the course of his employment. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.