Claim of McCann v. Hy-Al Luncheonette Co. , 135 N.Y.S.2d 823 ( 1954 )

Appeal by an employer and its insurance carrier from an award of death benefits made to the widow of a deceased employee. Decedent was employed as a part-time counterman in a luncheonette. He was found during working hours behind a counter in an unconscious condition, and after being revived was taken to a hospital. About two weeks after his discharge from the hospital he “ passed out in a subway ”, and later lapsed into a coma. He was returned to a hospital, operated on to control an epidural hemorrhage and died three days later. There is substantial evidence connecting decedent’s death with the first fall behind the counter in the luncheonette where he then worked. In the state of the proof the decisive issue is whether decedent’s first fall was an accident, or came about as the result of a fainting spell induced by internal causes. In other words whether decedent slipped and fell, or whether he fell because of a fainting spell. The board did not determine that issue either in its memorandum decision or in its findings. Instead it said “the surroundings were such that they constituted an extra hazard of the employment which caused the injuries that ultimately proved to be fatal”. We find no substantial evidence in the record to support such a finding. It may be that an award can be justified on new findings, and as to that we express no opinion. Award reversed, with costs to appellants against the Workmen’s Compensation Board, and matter remitted for further consideration. Foster, P. J., Bergan, Halpern, Imrie and Zeller, JJ., concur.