Claim of Pollack v. Lingerie

65 A.D.2d 831, 409 N.Y.S.2d 833, 1978 N.Y. App. Div. LEXIS 13726

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1978
• Status: Published

Opinion

—Appeal from a decision of the Workers’ Compensation Board filed May 6, 1977. At issue on this appeal is the third myocardial infarction suffered by claimant, which occurred on February 20, 1973 while claimant was an employee of Baronette Lingerie. The board, in affirming the referee, found that the activities of the claimant on the day in question were excessively arduous and strenuous in view of his pre-existing heart condition and did precipitate the acute myocardial infarction with the resultant disability. The board also found that the delay in giving notice did not hinder the employer and its carrier in the preparation of their defense and, therefore, excused claimant’s failure to give timely notice. Appellants urge that the board’s determinations were not supported by substantial evidence. The record indicates that the employer, through one of its officers, was aware of claimant’s hospitalization the same day as the injury, after the claimant complained of illness while being at work. The claimant received prompt medical attention and the employer’s ability to investigate was not deterred. The same witnesses were available as would have been available with earlier notice. The proof indicates that the appellants were not hindered in the preparation of their defense. The testimony in regard to the causal relationship raised issues of credibility which were for the board to decide (Matter of Hawthorne v Peartrees, Inc., 56 AD2d 961, affd 43 NY2d 683). Substantial evidence supports the board’s determination in all respects. Decision affirmed, with costs to the Workers’ Compensation Board against appellants. Mahoney, P. J., Greenblott, Larkin, Mikoll and Herlihy, JJ., concur.