Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by a self-insured employer from an award for reduced earnings at the rate of $26.61 per week. Claimant was a police officer in the Village of Newark, N.Y. On June 9, 1955 he was called upon to assist in subduing a recalcitrant prisoner. At the time he suffered pains in his chest and difficult breathing, and soon thereafter suffered a myocardial infarction. Compensation for total disability was paid for a time. The present award is for 50% disability. Appellant does not question the accident or the disability, but contends that because claimant had a pre-existing heart condition and sustained an episode on April 8, 1955 while engaged in nonoccupational activity, the board should have attributed part of the disability to the earlier episode and apportioned the award between claimant and appellant. There is medical evidence connecting the myocardial infarction and claimant's disability with the occurrence of June 9, 1955 in the employment. Although perhaps it could be said that claimant suffered some medical disability prior to the June 9, 1955 accident, he performed his full duties until June 9, 1955 when he sustained the accident here under consideration. Under these circumstances the board was not bound to attribute part of his disability to any pre-existing condition, and there is adequate evidence to support the award ( Matter of Miller v. Workmen's Compensation Bd., 284 App. Div. 107 1; Matter of Scott v. Town of North Hempstead, 14 A.D.2d 946). Award unanimously affirmed, with costs to the Workmen's Compensation Board.