Claim of Nowakowski v. Atlas Contractors Equipment, Inc.

284 A.D. 914, 134 N.Y.S.2d 571, 1954 N.Y. App. Div. LEXIS 4047

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 1954
• Status: Published

Opinion

-Appeal by an employer and its carrier from a decision of the Workmen’s Compensation Board awarding death benefits to the widow of a deceased employee. The decedent, a truck driver, thirty-four years of age, pursuant to instructions from his employer, had driven from Long Island City, New York, to Union, New Jersey, where he had picked up a load of metal forms. The claimant’s evidence, though circumstantial in nature, shows that decedent for a period of two and one-half to three hours assisted in the loading operation by stacking and adjusting the forms on his truck. Each form weighed from twenty-three to thirty pounds, a total weight of about ten tons having been loaded on decedent’s truck. Approximately forty minutes after commencing his return trip, the decedent stopped his truck in order to pick up an object which had fallen from it. While walking back to the truck with the object which weighed about five pounds, decedent collapsed and died. No autopsy was performed and the record is silent as to any pre-existing heart pathology. There is evidence in the record purporting to show that it was contrary to usual practice for a truck driver to assist in the loading of his truck. The board found that, as a result of the unusual physical work, decedent was subjected to overexertion and strain of his heart, which resulted in his death. The award was based upon substantial evidence and was within the province of the board. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpem and Imrie, JJ.