June 16, 1955.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Bergan, Halpern, Imrie and Zeller, JJ.
The decedent, about fifty-nine years of age, worked as a carpenter for the employer who was a contractor engaged in the business of remodelling homes. On May 31, 1950, while reshingling a steep roof, the decedent fell a distance of twenty feet, landing on a scaffold four feet below the edge of the roof. He was pronounced dead by a physician who noted areas of trauma on his face and head. An autopsy was performed which disclosed that decedent suffered from a serious heart ailment and that the cause of death was the heart pathology. The record shows that decedent had consulted his physician on May 17th, complaining of shortness of breath, a back pain while at work and a cough at bedtime. His physician examined him again on May 20th, and on that occasion he was told to take it easy. Decedent called his doctor on May 24th, reporting that he was coughing and had a pain in his chest. By May 29th, there was a complete return to regular sinus rhythm, but the doctor found there was some enlargement of the heart when he refluoroscoped decedent's chest. An electrocardiogram was ordered for June 1st, but on May 31st, when the doctor was called to where the man had been shingling, he was dead. There is testimony in the record by decedent's nephew, who was working with him and who had gone to the ground for some supplies, that he had just spoken to decedent and that decedent had replied from the roof; that he heard decedent fall from the roof to the scaffold; that the nephew and another employee managed to bring the decedent to the ground; and that decedent was then making some gasping noises. The board found that decedent's death resulted from injuries sustained in an industrial accident, when he fell from the roof to the scaffold and that decedent's employment was a causative factor of death. The appellants argue that the death was caused by a preexisting heart condition and not by an industrial accident. It is their claim that while engaged in his usual occupation, he suffered a heart attack and died therefrom. We believe that there is substantial evidence to support the decision of the board. The fact that decedent suffered from a severe underlying pathology does not ipso facto bar the claim ( Matter of Masse v. Robinson Co., 301 N.Y. 34). It merely points up the closeness of the issue as to whether the death was caused solely because of the heart condition or whether his fatal attack was brought on by his employment. There is medical opinion in the record which supports the claim that the heart condition was the sole cause of the death. But there is substantial medical testimony that the decedent's fall from the roof was a definite contributory factor in precipitating, accelerating and causing the fatal attack. A specialist in internal medicine testified that anybody falling from a roof would be subjected to great emotional stress which would further damage an injured heart. The presence of trauma and the gasping of the decedent after his removal from the scaffold indicate that he was alive when he fell. (Cf. Matter of Concilla v. Scrufari Constr. Co., 275 App. Div. 884, affd. 300 N.Y. 519.) From the record as a whole we conclude that the question of accidental death rested with the board and its determination is final. The other argument made by the appellants is that they are entitled to reimbursement under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law because the decedent had a pre-existing permanent physical impairment. It is true such a condition was found on the autopsy. The mere existence of such a permanent condition is not sufficient to entitle the appellants to reimbursement. In addition to the presence of a permanent physical impairment, there must be proof that the employer knew of it and continued the employment. ( Matter of Zyla v. Juilliard Co., 277 App. Div. 604. ) No proof that the employer knew of the decedent's condition appears in the record and consequently, the employer is not entitled to reimbursement. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.