Opinion
October 28, 1970
Appeal from a decision of the Workmen's Compensation Board, filed September 29, 1969. The sole issue is whether the board properly apportioned responsibility for death benefits between the carrier and Special Disability Fund, limiting the carrier's reimbursement after 104 weeks to 50% of the death claim when a prior heart attack and a subsequent fatal heart attack during the same employment formed the basis for relief under section 15 (subd. 8, par. [e]) of the Workmen's Compensation Law. The decision of the board is supported by the cases previously decided in this court and should be sustained. ( Matter of Zacamelski v. Rosco Mfg. Co., 34 A.D.2d 847; Matter of Sherman v. Holland Furnace Co., 2 A.D.2d 911, affd. 3 N.Y.2d 860; Matter of Conklin v. Arden Farms Dairy Co., 2 A.D.2d 910, affd. 3 N.Y.2d 860; Matter of Gessi v. Kennedy Value Mfg. Co., 1 A.D.2d 718.) In each of these cases, we permitted the board to determine the percentage each accident contributed to the ultimate disability, and to charge the employer, rather than the Special Disability Fund with that portion of the award attributed to the first accident. The interpretation given to section 15 (subd. 8, par. [d]) in those disability cases, should also apply to death claims with respect to the right of reimbursement. Decision affirmed, with costs to the Special Disability Fund. Herlihy, P.J., Reynolds, Staley, Greenblott and Cooke, JJ., concur.