Opinion
March 16, 1949.
Appeal from Workmen's Compensation Board.
The evidence is sufficient to sustain the finding that deceased became disabled as the result of a hernia, an occupational disease contracted due to the nature and in the course of his employment. ( Matter of Foster v. Gillinder Bros., 278 N.Y. 348.) This condition necessitated an operation which in turn was a competent producing cause of the miliary tuberculosis which subsequently caused the death. Although the partial dependency of the claimant (mother) has been established the finding that the decedent's average weekly wage was stipulated at $37.50 is directly contrary to the evidence. The stipulation established the wage at $34.50. The decision filed November 20, 1947, is affirmed, and the case remitted to the Workmen's Compensation Board for correction of award. No costs are awarded. Foster, P.J., Brewster, Deyo, Santry and Bergan, JJ., concur.