Claim of Armstrong v. Blakey , 227 N.Y.S.2d 512 ( 1962 )

Appeal from a decision of the Workmen’s Compensation Board. Decedent, who was employed as a chauffeur, had for some years been suffering from diabetes and hypertension, conditions known to the employers. He died from a heart attack after helping to push a stalled automobile. Accidental causation is not disputed by the carrier; the appeal is based on a refusal of the Workmen’s Compensation Board to charge the award to the Special Funds Conservation Committee under subdivision 8 of section 15 of the Workmen’s Compensation Law. The board ruled that the statutory condition that “ ‘ death would not have occurred except for such pre-existing permanent physical impairment ’ ” had not been shown in the record. The board’s memorandum states: “ there is insufficient medical evidence that death would not have occurred except for the diabetes condition.” The insufficiency in evidence, as we read the record, is the other way. One physician testified unequivocally to the contribution of the diabetes to the death from the heart attack. Another physician was equivocal; agreed the diseases were associated; negatived diabetes as a “ cause ” of coronary sclerosis; but added that “ I think one can certainly say that had this man not been a diabetic he would not have had coronary arteriosclerosis of a fatal degree.” On the record thus presently developed, there seems no substantial evidence to sustain the board’s decision. It may well be the fact that the diabetes played no essential part in the death; but this record as presently developed does not establish it. Decision reversed and claim remitted to the board for such further proceedings as it may be advised, with costs to appellant against Special Funds Conservation Committee. Bergan,,P. J., Gibson, Herlihy, Reynolds and Taylor. JJ., concur.