MATTER OF BAUM v. B. B. AUTO WORKS,15 A.D.2d 616[3d Dept 1961]
In the Matter of the Claim of LENORE BAUM, Respondent v. B. B. AUTO WORKS
et al., Appellants.
WORKMEN'S COMPENSATION BOARD, Respondent.
Appellate Division of the Supreme Court of New York, Third Department.
Appeal by the employer and its carrier from a decision and award of the Workmen's Compensation Board granting death benefits to the widow of the deceased employee. The employer was engaged in the business of repairing automobile bodies. The co-owners and sole employees were decedent, its vice-president, and Saul Bernstein, its president. Decedent died on November 25, 1958 of a coronary infarction or coronary occlusion. Saul Bernstein testified that on November 24, 1958 while removing a bumper from a car decedent experienced pains in his chest. At Bernstein's insistence decedent went to a Dr. Kampf whose offices were nearby who diagnosed his condition as possible coronary thrombosis and advised hospitalization. On the morning of November 25, 1958 decedent consulted a specialist, Dr. Eisen, who took an electrocardiogram and hospitalized decedent immediately. Thirty-five minutes later decedent died. Appellants contend that there is no credible evidence to support the finding of an accident on November 24, 1958. They assert that the whole story of decedent experiencing a pain in the chest during a bumper removal was an afterthought and a fabrication to collect compensation for decedent's widow. To support this contention they point out that decedent did not mention the incident to Dr. Eisen, that he had stated that the symptoms began while he was resting, that the claim was not filed till sometime after decedent's death, that Bernstein's account of the bumper incident is full of inconsistencies including whether it was the rear or front bumper that was being removed and lastly that Bernstein had admitted to an investigator of the carrier that the whole story was untrue and for the company to disprove it if it could. Respondents on the other hand contend that the investigator admitted threatening Bernstein, that the admission by Bernstein that the story concerning the bumper was a fabrication was really based on silence to such an accusation by the investigator, that Bernstein maintained the accident did occur, that the delay in reporting the claim was due to the fact that Bernstein did not tell decedent's wife of the incident till sometime after his death because he did not realize a claim could be filed, that Dr. Kampf, the physician decedent saw on the 24th, testified decedent told him about the bumper incident and finally that while decedent did not specifically mention the bumper incident to Dr. Eisen he was at that timein extremisand he did state that "the pain also came on during work". Questions of credibility have repeatedly been held to be within the sole province of the board (Matter of De Lucav.Garrett Co.,12 A.D.2d 569). Although conflicting, the evidence in the record supporting the occurrence of the bumper incident is not so incredible that we can hold thePage 617board must find it did not occur. Basically there is a dispute between Saul Bernstein and Dr. Kampf and appellants' investigator. The testimony of Dr. Kampf, an unbiased witness, that decedent told him of the incident on the November 24 visit together with Saul Bernstein's testimony provides evidence upon which the board could find that the accident occurred. Appellants also assert that there is no substantial evidence that decedent's death is causally related to an accidental injury. Appellants' contention is based on the following: (1) decedent stated he first felt substantial pain two weeks prior to his death while at rest, (2) decedent had four previous attacks, (3) Dr. Eisen testified the acute phase occurred 20 minutes before he saw decedent on November 25, 1958, (4) respondent's expert witness admitted decedent had progressive coronary disease which could culminate in death with or without effort. Dr. Wally, claimant's expert, testified that since decedent developed an acute symptom which necessitated his seeing a doctor following a substantial physical exertion, it was his opinion that the physical exertion precipitated a coronary thrombosis on the 24th which resulted in the fatal infarction the next morning. He further testified that the earlier "attacks" were merely anginal symptoms from which decedent recovered. The fact that Dr. Kampf diagnosed the attack of the 24th as a coronary thrombosis supports Dr. Wally's opinion. We have therefore a conflict in the expert testimony which the board has resolved in favor of the widow. There is substantial evidence in the record upon which the board could find causal relationship. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.