Claim of Prepscius v. Bow Walsh Associate

Appeal from a decision of the Workers’ Compensation Board, filed May 18, 1978, as amended by a decision filed July 20, 1978, which awarded death benefits under the Workers’ Compensation Law. On December 17, 1975, decedent was involved in an unwitnessed automobile accident wherein his vehicle left the road and struck a utility pole. It is conceded that the accident occurred during the course of decedent’s employment. The pathologist who performed the autopsy testified that he received information that decedent was pinned inside the car and had to be extricated. He also testified that the usual mechanism for death in these cases is a compression of the chest and inability to breath, and concluded that the cause of death was traumatic asphyxia. There is some indication in the record that decedent had a history of epilepsy. The board found that decedent sustained an 725 accident arising out of and in the course of employment, resulting in a causally related death and affirmed the award of death benefits to decedent’s widow and two minor children. This appeal ensued. Appellants contend that the board’s decision is not supported by substantial evidence and that decedent died as a result of an epileptic seizure. There was no medical evidence offered by appellants to show that decedent died as a result of an epileptic seizure. In view of the presumption of section 21 of the Workers’ Compensation Law, and the testimony of the pathologist, the board’s determination is supported by substantial evidence, and should be affirmed (see Matter of Cargain v Poritzky’s Meat Co., 58 AD2d 907). There is no merit to appellants’ contention that the carrier was not afforded sufficient opportunity to develop the record (Matter of Ortiz v Berkel Elec. Co., 61 AD2d 872). Decision affirmed, with costs to the Workers’ Compensation Board against the employer and its insurance carrier. Greenblott, J. P, Sweeney, Staley, Jr, Mikoll and Herlihy, JJ, concur.