Opinion
May 13, 1949.
Appeal by employer and its insurance carrier from an award of death benefits made to the widow of Diego Concilla, deceased employee. The board found that on January 12, 1948, deceased was working for his employer at the edge of an excavation which was covered with ice; that he fell into the excavation and that the direct cause of death was an "Acute terminal cardiac inadequacy", and that the fall was a contributory factor to the death. The contention of the appellants is that decedent did not sustain accidental injuries arising out of and in the course of his employment. The excavation into which decedent fell was about eight feet deep, three feet in width and about twenty feet in length. The excavation was shored up by wood planking. Immediately prior to his fall the decedent was engaged in the regular course of his employment and was cleaning lanterns at the edge of the excavation. The edge of the excavation where decedent was working was covered with ice and was in a slippery condition. An autopsy was performed on the body of decedent and this disclosed that there were numerous contusions on the scalp; that there was a round contusion one inch in diameter over the right temporo-frontal area of the scalp and that there were various injuries to the mouth, bridge of the nose and right leg. The evidence sustains the finding of the board that the accidental injuries which arose out of and in the course of decedent's employment were a contributing factor to his death. The testimony and the inferences to be drawn therefrom justify the finding. Award affirmed, with costs to the Workmen's Compensation Board.
Deceased, a laborer, was last seen alive working at or near the edge of an eight-foot trench. His body was found at the bottom of the trench. No one witnessed the accident. The cause of death was given as acute cardiac failure, chronic myocarditis and arteriosclerosis. The injuries sustained from the fall were inconsequential. There is no substantial evidence to sustain the finding that death was the result of accidental injuries arising out of and in the course of employment; on the contrary there is positive medical proof that death occurred prior to the fall. In view of such evidence the presumption embodied in section 21 Work. Comp. of the Workmen's Compensation Law does not apply and the decision and award should be reversed.