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Nichols v. Colonial Beacon Oil Co.

Supreme Court of New York, Appellate Division

July 8, 1954

In the Matter of the Claim of JESSE M. NICHOLS, Deceased, et al., Respondents,
v.
COLONIAL BEACON OIL COMPANY et al., Appellants. WORKMEN'S COMPENSATION BOARD, Respondent.

APPEALS from decisions and awards made by the Workmen's Compensation Board under the Workmen's Compensation Law and filed on November 3, 1952 and prior thereto.

COUNSEL

Thomas H. Fogarty for appellants.

Paul F. Eaton for claimants-respondents.

Page 582

John M. Cullen for Special Funds Conservation Committee.

Nathaniel L. Goldstein, Attorney-General (Harry Pastor and Roy Wiedersum of counsel), for Workmen's Compensation Board, respondent.

IMRIE, J.

Decedent, Jesse M. Nichols, was employed by Colonial Beacon Oil Company from May 1, 1938, until his death on April 5, 1946, as a truck driver distributing petroleum products. His work included loading and unloading trucks and tank trucks and lifting cans containing bulk products weighing from sixty-five to seventy-five pounds. He had worked in a similar capacity for one Kellam, of Hancock, New York, from 1933, until Kellam sold his business to this employer in 1938.

On February 28, 1946, decedent injured his thumb. That injury is not controverted and, per se, has little relevancy here except as the agent setting up an unusual chain reaction. Knowing of the injury, employer's plant supervisor asked Dr. Farrell, employer's examining physician, for a complete physical examination in order to determine whether decedent's inefficient performance of duties resulted from a physical condition, advising the doctor that Nichols had not had a routine examination for a long time. On March 6, 1946, the doctor found and reported to the employer the existence of a bilateral hernia. He received a history of the hernia development seven or eight years previously while decedent was lifting a tank from the ground. Decedent told him that he then felt an acute pain in his right groin and noticed a bump there and that there was some pain on his left side but no bunch there noted. The incident was not reported to the company or to decedent's coworker on that job. When the doctor examined him, he was wearing a truss, which the doctor said did not hold well. An operation was advised, which was performed March 23, 1946. The operation was described as 'successful' but decedent died April 5, 1946. The cause of death was certified as delirium tremens.

On March 8, 1946, employer filed a report of the thumb injury and another with respect to the double hernia. Decedent filed a claim for the thumb injury March 18, 1946. On May 2, 1946, the widow filed a claim for death benefits setting up the bilateral hernia and two accidents, 'approximately 1940' and 'In summer of 1945,' stating accident 'occurred lifting equipment and oil drums'. On its own motion the Workmen's Compensation Board opened separately numbered files for the thumb injury, herniae, and death claim. Subsequent proceedings

Page 583

involved many hearings and various decisions by referees and the board, which need not be treated here in detail.

On November 22, 1950, a board decision established occupational disease, causal relationship and notice, and made an award in the thumb case, reversing a referee's decision therein of December 15, 1949. The referee's disallowance of the herniae case on the ground of no proper notice and no timely filing of claim was affirmed. The referee's decision disallowing the death claim was reversed and that case restored to the calendar for further development of the record. The memorandum of decision recited that there was evidence of sufficient probative strength to establish that the nature of claimant's work exercised a heavy strain upon a weakened abdominal wall and was the causative factor of his disabling condition, which warranted the finding of an occupational disease resulting in a causally related total disability from March 22, 1946, to the date of death. It was held that employer was not pre-judiced by failure to give statutory notice and that advanced payment of compensation had been made to the date of death.

Appellants' first notice of appeal was then filed. In a memorandum of April 12, 1951, adverting to such appeal, the board restored the death claim to the referee's trial calendar for further development of the record and production of further medical proof on the issue of causal relationship last ...


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