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MATTER CLAIM ETHEL BOSTED v. LARSEN BAKING CO. (06/24/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1969.NY.42172 <http://www.versuslaw.com>; 301 N.Y.S.2d 227; 32 A.D.2d 870 June 24, 1969 IN THE MATTER OF THE CLAIM OF ETHEL BOSTED, APPELLANT,v.LARSEN BAKING CO., INC., ET AL., RESPONDENTS. WORKMEN'S COMPENSATION BOARD, RESPONDENT Appeal by the claimant from a decision of the Workmen's Compensation Board, filed April 19, 1968, which disallowed a claim for death benefits. Herlihy, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Herlihy, J. Author: Herlihy


Appeal by the claimant from a decision of the Workmen's Compensation Board, filed April 19, 1968, which disallowed a claim for death benefits.

Herlihy, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Herlihy, J.

Author: Herlihy

The history of the case is as follows: On June 1, 1959 the claimant's husband died while at work; on June 13, 1962 the board affirmed an award of death benefits; on November 8, 1963 this court reversed the decision of the board and remitted the case (19 A.D.2d 924); on August 8, 1967 a Referee again awarded death benefits; on April 19, 1968 the board reversed the Referee and disallowed the claim. The board has found that the death "was due to a pre-existing advanced coronary disease and not to any work activities which required any greater exertion than the ordinary wear and tear of life." This finding is supported by the testimony of Dr. Clark for the employer which constitutes substantial evidence. Whether or not there was excessive work activity was for the board to decide and we have no alternative to affirmance. (See Matter of Palermo v. Gallucci & Sons, 5 N.Y.2d 529: Matter of Bobb v. Weaderhorn Constr. Co., 8 A.D.2d 888.)

 Disposition

Decision affirmed, without costs.

19690624

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