Claim of Wiltcher v. National Transportation Co. , 130 N.Y.S.2d 586 ( 1954 )

Appeal by employer and its insurance carrier from a decision of the Workmen’s Compensation Board, dated and filed November 3, 1952, which determined that claimant sustained a compensable accident and excused his failure to file a notice of claim within the statutory period. Subsequent to this decision an award of compensation was made but no appeal was taken from the award itself. The employer operated a fleet of taxicabs in the city of New York and claimant was one of its drivers. He had worked for the same employer for about twenty-four years. The board has found that on the 7th day of November, 1949, claimant suffered a heart attack as the result of strain and emotional excitement caused by his efforts to avoid a collision with another taxicab. There is a sharp conflict in the medical testimony as to causal relation but the board has accepted the testimony of the physicians who testified for claimant and we cannot say as a matter of law that such testimony was not substantial. Whatever inconsistencies there may have been in this testimony, the issue of credibility was nevertheless for the board to determine. We think the board could find that the incident constituted an industrial accident (Waehsstock v. Sky View Transp. Go., 279 App. Div. 831; Matter of Masse v. Robinson Go., 301 N. Y. 34). The board’s action in excusing claimant’s failure to give a written notice of the injury to the employer within the statutory period was within its discretional powers under section 18 of the Workmen’s Compensation Law. It does not appear that the employer was prejudiced by claimant’s omission to file such notice within the period provided. Award affirmed, with costs to the Workmen’s Compensation Board. Foster, P. J., Bergan and Coon, JJ., concur. Imrie, J., dissents.