Opinion
October 24, 1967
Appeal by the employer and its carrier from a board decision awarding death benefits. The decedent was employed as a pipefitter and was assisting in the repiping of a steel gas washer which was girded by several landings or catwalks located at varying heights between 22 and 65 feet and in order to reach any of the catwalks, decedent was required to use steel ladders set in vertical positions next to the gas washer. At the time of his death, decedent was working on a catwalk some 36 feet above ground and it further appears that death occurred very shortly after he had ascended one of the vertical ladders while carrying a 24 inch, 5 pound pipe wrench up the ladder. Claimant's medical consultant filed a report and testified that the climbing of the ladder under these circumstances would constitute a strenuous activity which "could be a contributing factor to the fatal heart attack" and that his activities just prior to his death entailed more than ordinary exertion, while the carrier's medical witness testified that death resulted from a "naturally recurring heart disease which had been present previously, and that the work activities * * * did not constitute any strenuous effort". It is within the board's province to select the medical opinion upon which it based its conclusion ( Matter of Palermo v. Gallucci Sons, 5 N.Y.2d 529). The board's finding that there was causal relation between the death and the work performed by the decedent was supported by substantial evidence upon which to predicate an award ( Matter of Harmonay v. Harmonay, 24 A.D.2d 800; Matter of Pickhardt v. Heist Ohio Corp., 20 A.D.2d 737; Matter of Kehoe v. London Guar. Acc. Ins. Co., 278 App. Div. 731, affd. 303 N.Y. 973). Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.