Claim of Burris v. Lewis , 1 A.D.2d 859 ( 1956 )

Appeal from an award by the Workmen’s Compensation Board in a death case. The decedent had been employed by the appellant Lewis, a masonry contractor, to work on the setting up of forms into which concrete was to be poured for building foundations. The forms consisted of panels three or four feet wide and seven feet long. They were erected into place by the decedent and others and they were then fastened together by steel pins fitted into preexisting holes in the panels. The decedent also on occasion drove stakes, nailed braces and put in “ whalers ”, which were two by fours used to lock in the panels. On the day preceding the fatal attack, he had helped to dig a trench for footings about one and one-half feet deep and one foot wide. On the day of the attack, he had been engaged in putting up panels and putting “whalers” in place. At the end of the day, as he was lifting a nail keg containing his tools and pins, weighing in all about fifty pounds, onto a truck, he collapsed of a heart attack and died shortly thereafter. It appeared that the decedent had suffered from chronic rheumatic heart disease. There was medical proof to the effect that the “ stress and strain ” of the work which the decedent had undertaken, operating upon the pre-existing heart disease, was a “ competent producing cause of his death”. Under the authority of Matter of Masse v. Robinson Co. (301 N. Y. 34) and Matter of Gioia v. Courtmel Co. (283 App. Div. 40, motion for leave to appeal denied 306 N. Y. 985) the board was justified in finding that the decedent’s death was due to an accident arising out of and in the course of his employment. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present ■—Foster, P. J., Coon, Halpern, Zeller and Gibson, JJ.