Folks v. Donner Hanna Coke Corp. ( 1971 )

Appeal by the employer and its insurance carrier from decisions of the Workmen’s Compensation Board, filed June 12, 1969, August 28, 1969 and March 23, 1970. Two claims are involved on this appeal: (1) a claim for workmen’s compensation benefits instituted by the employee, Coleman Lyles, for disability caused by an occupational disease; and (2) a claim for death benefits on account of his death from an occupational disease. Appellants contend that timely notice was not given by the deceased employee in the disability claim and such failure is not excusable; and further, that both the disability and death benefits claims have abated by reason of the death of the widow on March 25, 1967. As to the question of adequate notice, the board found that' there was no prejudice to the employer and, therefore, the failure to give statutory notice was excused. (Workmen’s Compensation Law, §§ 18, 45.) This finding, based on the employer’s actual notice of disability, is supported by substantial evidence. (Matter of Riccobono v. Continental Cas. Co., 2 A D 2d 718, mot. for lv. to app. den. 2NT 2d 705.) The board’s further findings that prior to the widow’s death, dependency had been determined and there was a complete determination on the merits in her favor are also supported by substantial evidence. (Matter of Brown v. Central Coal Co., 3 A D 2d 867.) Decisions affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Staley, Jr., G-reenblott, Cooke and Sweeney, JJ., concur.