Matter of Flood v New York State Dept. of Transp.
2005 NY Slip Op 03120 [17 AD3d 922]
April 21, 2005
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 22, 2005


In the Matter of the Claim of Joanne Flood, as Widow of Ralph Davis, Deceased, Appellant, v New York State Department of Transportation et al., Respondents. Workers' Compensation Board, Respondent.

[*1]

Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filed February 27, 2004, which ruled that the death of claimant's decedent did not arise out of and in the course of his employment and denied her claim for workers' compensation death benefits.

Decedent, a highway maintenance worker, suffered a cardiac arrest while operating a loader vehicle and died at the hospital later that same day. Claimant, decedent's wife, filed a claim for workers' compensation death benefits, alleging that decedent's death was causally related to his employment. Following hearings, the Workers' Compensation Law Judge found that claimant was entitled to the presumption of compensability under Workers' Compensation Law § 21 because decedent's death was unwitnessed and arose out of and in the course of his employment. The Workers' Compensation Board found that the employer successfully rebutted the presumption of compensability afforded by Workers' Compensation Law § 21 and reversed. This appeal by claimant ensued. [*2]

The issue distills to whether the Board's decision was supported by substantial evidence. Here, the employer and its workers' compensation carrier produced medical evidence showing that decedent suffered from a long history of heart problems, including a prior heart attack at age 35 and a cardiac arrest during a recent surgery. The death certificate and autopsy report indicate that the cause of decedent's death was cardiac arrest due to coronary thrombosis and severe coronary arteriosclerosis. Although decedent's supervisor and coworker testified that decedent's job involved some degree of exertion by requiring him to climb on and off the loader, operate the loader and manually move cones in the work zone, the carrier's medical expert, who reviewed their testimony and decedent's medical history, concluded that decedent's death was not precipitated by any significant strenuous or unusual activity at work that day but from a severe preexisting heart condition. As it was the province of the Board to weigh any conflicting evidence and determine whether the presumption of compensability had been rebutted (see Matter of Wichtendahl v Arrow Bus Line, 307 AD2d 400, 401 [2003]; Matter of Estate of Hertz v Gannett Rochester Newspapers, 272 AD2d 814, 815 [2000]; Matter of Myers v Eldor Contr. Co., 270 AD2d 671, 672 [2000]), we find no basis to disturb the Board's decision.

Cardona, P.J., Crew III, Spain and Kane, JJ., concur. Ordered that the decision is affirmed, without costs. INCORRECT CASE CITATIONS PG# BAD CITATION CASE NAME IN DECISION 47 40 NY2d 366 Matter of Riley v Aircraft Prods. Mfg. Corp. UNCONFIRMED CASE CITATIONS PG# UNCONFIRMED CITATION CASE NAME IN DECISION 41 AD2d 984 Matter of Soucy v Board of Educ. of N. Colonie Cent. School Dist. No. 5, CASE NAME DISCREPANCIES — CASES IN WEST KEYCITE PG# CITATION CASE NAME IN DECISION KEYCITE CASE NAME 10 124 S Ct 2424 US Austin v U.S. Dist. Ct. for Dist. of Nevada 33 265 AD2d 932 Matter of Katy Z. (Jo Ann N. In re Katy Z. 34 192 AD2d 602 Commissioner of Social Servs. of City of N.Y. (Trudy I.) v Leona W. Commissioner of Social Servs. of City of New York on Behalf of Trudy I. v Leona W. 34 171 AD2d 250 Matter of Katrina W. (Rosalyn W. Matter of Katrina W. 34 241 AD2d 622 Matter of Jennifer VV. (Rhonda VV. Matter of Jennifer VV 34 289 AD2d 892 Matter of Shawna DD. (Suzanne DD. In re Shawna DD 34 284 AD2d 595 Matter of Skylar NN. (Richard NN. In re Skylar NN 34 283 AD2d 675 Matter of Jonathan P. (Rebecca Q. In re Jonathan ""P"" 34 280 AD2d 710 Matter of Kaleb U. (David U. In re Kaleb U 41 285 AD2d 751 Matter of Alexis BB. (Kristle BB. In re Alexis BB 47 70 AD2d 670 Matter of Quinn v State of New York Quinn v State, Dept. of Law 54 108 AD2d 948 Matter of Frazer v Additional Personnel Frazer v Additional Personnel, Inc. 54 227 AD2d 836 Matter of Tavano v Tavano Enters. Tavano v Tavano Enters., Inc. 54 199 AD2d 658 Matter of Lachover v C&A Bldrs. Lachover v C & A Bldrs., Inc. 60 308 AD2d 616 Matter of Marcelin v New York State Bd. of Parole Marcelin v New York State Div. of Parole 77 305 AD2d 74 Morgenthow & Latham v Bank of N.Y. Co. Morgenthow & Latham v Bank of New York Co., Inc. 77 234 AD2d 754 Unadilla Silo Co. v Ernst & Young Unadilla Silo Co. Inc. v Ernst & Young 79 192 AD2d 451 Jane St. Co. v Rosenberg & Estis Jane St. Co. v Rosenberg & Estis, P.C. 88 222 AD2d 572 Rudnick v Glendale Sys. Rudnick v Glendale Sys., Inc. 88 748 F2d 729 Grumman Allied Indus. v Rohr Indus. Grumman Allied Indus., Inc. v Rohr Indus., Inc. 91 125 S Ct 1081 US Cheeseman v Banta 91 251 AD2d 731 People ex rel. Jackson v McGinnis People v McGinnis 94 100 15 AD3d 742 Matter of Kohut (Commissioner of Labor In re Kohut 102 297 AD2d 839 Matter of Sartoni v Selsky Sartori v Selsky 105 293 AD2d 904 Matter of Desir (Commissioner of Labor In re Desir 106 260 AD2d 873 Matter of Regnier (Commissioner of Labor In re Regnier 108 261 AD2d 686 Matter of Fruscella (Commissioner of Labor In re Fruscella 109 256 AD2d 710 Matter of McGee (Commissioner of Labor Claim of McGee 111 156 AD2d 781 General Elec. Tech. Servs. Co. v Perez General Elec. Tech. Servs. Co., Inc. v Perez 111 254 AD2d 585 Action Lawn & Landscaping v East Glenville Fire Dist. Action Lawn & Landscaping Inc. v East Glenville Fire Dist. 111 257 AD2d 942 Gibbs v Hoot Owl Sportsman's Club Gibbs v Hoot Owl Sportsman's Club Inc. 114 165 AD2d 942 Matter of Rego (Hartnett Matter of Rego 115 304 AD2d 967 Matter of Polito (Commissioner of Labor In re Polito 115 278 AD2d 612 Matter of Reda (Commissioner of Labor In re Reda 122 196 AD2d 15 New York City Off Track Betting Corp. v State of New York Racing & Wagering Bd. New York City Off Track Betting Corp. v State of N.Y. Racing & Wagering Bd. 125 304 AD2d 990 Matter of Rose v Verizon N.Y. Rose v Verizon New York, Inc. 126 37 AD2d 645 Matter of Flamholtz v Byrde, Richards & Pound Flamholtz v Byrde, Richards & Pound, Inc. 135 299 AD2d 774 Clinton County (Fortunatus In re Foreclosure of Tax Liens by Clinton County 135 299 AD2d 709 Clinton County (Zachary In re Foreclosure of Tax Liens by Clinton County 139 273 AD2d 708 Matter of Energy Assn. of N.Y. State v Public Serv. Commn. of State of N.Y. Energy Assn. of New York State v Public Serv. Commn. of State of N.Y. 139 275 AD2d 145 Saratoga County Chamber of Commerce v Pataki Saratoga County Chamber of Commerce Inc. v Pataki 139 263 AD2d 94 Matter of Town of E. Hampton v State of New York Town of E. Hampton v State 149 255 AD2d 95 Salisbury v Wal-Mart Stores Salisbury v Wal-Mart Stores Inc. CASE NAME DISCREPANCIES — CASES IN OFFICIAL DATABASE PG# CITATION CASE NAME IN DECISION OFFICIAL CASE NAME 60 65 82 10 AD3d 828 Matter of Zhang v Travis Matter of Wan Zhang v Travis 60 65 82 10 AD3d 828 Matter of Zhang v Travis Matter of Wan Zhang v Travis 60 65 82 10 AD3d 828 Matter of Zhang v Travis Matter of Wan Zhang v Travis 138 9 AD3d 651 Matter of Center Sq. Assn. v City of Albany Bd. of Zoning Appeals Matter of Center Sq. Assn., Inc. v City of Albany Bd. of Zoning Appeals