IN RE: the Claim of Evelyn WILSON

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Evelyn WILSON, Appellant, v. REDDY CONSTRUCTION COMPANY INC. et al., Respondents. Workers' Compensation Board, Respondent.

Decided: May 25, 2000

Before:  CARDONA, P.J., CARPINELLO, GRAFFEO, ROSE and LAHTINEN, JJ. Segar & Sciortino (John Sciortino of counsel), Rochester, for appellant. Hamberger & Weiss (Ronald E. Weiss of counsel), Rochester, for Reddy Construction Company Inc. and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed January 27, 1999, which ruled that the death of claimant's decedent was not causally related to his employment and denied her claim for workers' compensation death benefits.

On April 22, 1994, while working as a shop supervisor and diesel mechanic at a construction company, decedent suffered a myocardial infarction which resulted in his death.   Claimant, decedent's spouse, filed a claim for workers' compensation death benefits alleging that decedent's myocardial infarction and resulting death were caused by stressful and strenuous work-related activities, relying on the presumption of compensability in Workers' Compensation Law § 21(1).   The Workers' Compensation Board ruled that decedent's death was not causally related to his employment and denied the claim for death benefits, having found that the employer sufficiently rebutted the presumption of compensability with evidence that decedent's death resulted solely from significant preexisting coronary risk factors.   Claimant appeals.

We affirm.   The employer's consulting cardiologist testified that decedent's myocardial infarction was caused solely by preexisting risk factors, including heavy cigarette smoking and a family history of heart disease, and was not related to any stressful or strenuous employment activity.   Even decedent's treating internist was unable to state with a reasonable degree of medical certainty that decedent's work contributed to his death.

Significantly, the testimony of decedent's co-worker indicates that, despite the fact that decedent had been working long hours as a diesel mechanic for several weeks prior to his death, he had not been assigned to perform any particularly strenuous or stressful tasks and was completing paperwork at his desk for most of the morning on the day of his death.   Decedent was found lying on the floor near a bulldozer by his co-worker who had returned from an errand.   Although the employer bears a heavy burden in overcoming the presumption arising from an employee's unwitnessed death (see, Onody v. County of Oswego D.P.W., 223 A.D.2d 813, 813, 636 N.Y.S.2d 180;  Matter of Williams v. Metropolitan Distrib., 213 A.D.2d 852, 853, 623 N.Y.S.2d 657), we cannot conclude that the Board erred in finding no causal relationship (see, Matter of Salters v. Town of Woodstock, 267 A.D.2d 720, 701 N.Y.S.2d 132;  Matter of Purcell v. American Sip Corp., 248 A.D.2d 844, 670 N.Y.S.2d 222).   To the extent that the record contains medical testimony to suggest that decedent's work contributed to his death, this credibility issue was within the Board's province to resolve and did not preclude a finding that the presumption of compensability had been rebutted by sufficient evidence in this case (see generally, Matter of Salters v Town of Woodstock, supra, at 132).

ORDERED that the decision is affirmed, without costs.

GRAFFEO, J.

CARDONA, P.J., CARPINELLO, ROSE and LAHTINEN, JJ., concur.

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