Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Employer and carrier appeal from a decision of the Workmen's Compensation Board which determined death was the result of a compensable accident; that a notice of claim had been filed within the statutory two-year period; rescinded an award made to the Special Fund and directed a hearing to make an appropriate death benefit award to the widow. The decedent had worked for the employer, The Great Atlantic Pacific Tea Company, for many years and on November 4, 1954, while carrying milk cases in the course of his employment, experienced pain in his chest. The manager was advised, went to where the decedent was working, saw him take two nitroglycerine pills and shortly thereafter, while still on the premises, the employee died. The manager had directed that a doctor be called but death occurred prior to his arrival. An autopsy was performed which revealed that the cause of death was "Acute cardiac failure due to diffuse subendocardial fibrosis". The doctor who testified for the claimant had been the family physician and stated that the decedent had suffered from a heart ailment for some time prior thereto, which was the reason for taking the pills. The doctor who had gone to the scene of the accident was called by the carrier and stated that in his opinion there was a relationship between the work effort and the patient's death premised upon the autopsy finding that death was caused by acute cardiac failure and such failure could be related to an immediate preceding effort or work. He also stated that there was no coronary occlusion or infarct which he had reported prior to the autopsy findings. The other doctor who testified for the carrier stated that death was caused by an unrelated, pre-existing heart disease and in no way associated with his work activities. We have the somewhat anomalous situation here where the carrier's doctors were in disagreement, which, when coupled with the other medical testimony and reports, became a factual issue as to causal relationship and which was resolved by the board in favor of the claimant and supported by substantial evidence. ( Matter of Palermo v. Galluci Sons, 6 A.D.2d 911, affd. 5 N.Y.2d 529.) We have determined that ordinary strenuous work is sufficient to constitute a heart accident. ( Matter of Hudson v. Waddington Constr., 14 A.D.2d 463). Following the decedent's death (Nov. 4, 1954), the employer filed a report of injury dated November 5, 1954, in which it was stated that the accident occurred in the employer's store when the decedent was carrying cases of milk from the refrigerator. Thereafter the carrier filed a notice of contest as to the issue of accident and causal relationship. Subsequently the board addressed several notices to the claimant inquiring as to her intention to file a claim and on the back of one such letter dated November 20, 1955, she replied "I would like to prosecute my claim for another hearing". At the first hearing when the widow was present on February 7, 1957, the carrier raised the issue of nonfiling within the two-year period and she denied being interviewed by anyone concerning her intention as to filing a claim. The Referee disallowed the claim for not having been filed within the statutory period. A reading of the minutes of this particular hearing seems to substantiate the contention that when the Referee closed the case he did not have knowledge of the claimant's request for a hearing. Thereafter and on July 8, 1959, following the procedure that in a death case where there were no persons entitled to compensation, an award was made of $500 to the "Vocational Rehabilitation Fund" in accordance with subdivision 9 of section 15 and $1,500 to the "Fund for Reopened Cases" in accordance with section 25-a after which an application for review was filed by the carrier as to the happening of an accident and causal relationship. At the hearing the claimant appeared with an attorney, objected to the action of the Referee in closing the case, claiming among other matters that at the time she received the various letters, she was working for the employer and felt she was not entitled to make a claim. The board by its decision of March 24, 1960, found that the decedent sustained a compensable accident which resulted in his death, rescinded the award to the Special Fund and directed death benefits to the widow. We are satisfied that the notation on the letter of November 20, 1955, was sufficient notice of the intention of the claimant to claim compensation and that it was within the two-year period. The letter on which the notation was made was addressed to the claimant with a compensation number and the title of the claim and the response was more than sufficient to establish her intent. It was not necessary to use a prescribed form. ( Matter of Borelli v. Rochester Tr. Corp., 285 App. Div. 230, 234; Matter of Kaplan v. Kaplan Knitting Mills, 248 N.Y. 10.) The fact that no appeal was taken from the decision of the Referee closing the case is of no import. See sections 22 Work. Comp. and 123 Work. Comp. of the Workmen's Compensation Law as to the board's powers under continuing jurisdiction. Similar arguments have been made and rejected in other decisions of this court. ( Matter of Barnes v. New York Worlds Fair 1939, 277 App. Div. 819; Matter of Miller v. Stoddard Restaurant, 281 App. Div. 722, motion for leave to appeal denied 305 N.Y. 931; Matter of Ennis v. Kennedy Valve Mfg. Co., 282 App. Div. 971.) Decision of the Workmen's Compensation Board unanimously affirmed, with costs.