Claim of Neblett v. Salvation Army

Appeal from a decision of the Workers’ Compensation Board, filed October 11, 1978, which found that claimant’s decedent died as a result of an accident arising out of and in the course of his employment. Claimant’s decedent was 53 years old and working as a porter for the self-insured employer herein when, on May 5, 1973, he was found slumped over a table on the employer’s premises. He was removed to Bellevue Hospital, where he died two days later. It is uncontested that the cause of death was a cerebral hemorrhage suffered by decedent at his place of employment on May 5, 1973. As a result of this incident, decedent’s widow filed the instant claim for death benefits, and the board ultimately approved an award upon concluding that decedent’s unwitnessed accident was entitled to the prer sumption under section 21 of the Workers’ Compensation Law and that it had been established that decedent’s accident arose out of and in the course of his employment. This appeal ensued. We hold that the board’s decision should be sustained. As noted above, the opposing parties concede that decedent died as a result of a cerebral hemorrhage which he suffered while at work for the self-insured employer herein, and there is no evidence in the record suggesting any other cause of death. Under these circumstances, the death is entitled to the benefit of the presumption under section 21 and there is clearly substantial evidence to support the finding that decedent died as a result of an accident arising out of and in the course of his employment (Matter of Machold v Bendix Corp., 28 AD2d 753; Matter of Herring v Second Presbyt. Church, 26 AD2d 874). Decision affirmed, with costs to the Workers’ Compensation Board. Mahoney, P. J., Greenblott, Kane and Mikoll, JJ., concur; Main, J., not taking part.