24 A.D.2d 1056 | N.Y. App. Div. | 1965
This is an appeal from a decision of the Workmen’s Compensation Board in favor of claimant in an unwitnessed death claim. The decedent, 35 years old, on July 9, 1962 was working as a painter in the construction of a new home. He was working alone but his employer visited him about 11:45 in the forenoon and stated that the decedent was working along the cellar stairway, standing on the stairs, and appeared to be perfectly normal. Shortly after noontime he was found in the living room of the home, lying on his stomach, his arms and hands pointing toward his feet, his head turned right, the left side of his face resting on the floor, a pool of blood under his mouth. His open lunchbox was nearby and an exhaust fan was on the floor nearby and exhibited blood, from which it was inferred that the facial lacerations causing the blood were incurred when the decedent fell. The board, after noting that there was “a little pool of blood under the [decedent’s] mouth” and that the cause of death, as determined on the autopsy, was asphyxiation, found “in the absence of substantial evidence to the contrary, that the fall was not induced by any pre-existing pathological disorder but was accidental and arose out of and in the course of employmentIt is apparent from the language used “absence of substantial evidence to the contrary ”, that the board as to this finding was relying upon the presumption under section 21 of the Workmen’s Compensation Law in determining (1) that decedent’s fall was not induced by idiopathic causes and (2) that after he fell and as he lay on the floor, having sustained facial lacerations as he fell, he died by asphyxiation due to the obstruction of his nasal passages by a pool of blood which had gathered around his nose. We think that the record as a whole is to the contrary and that there is substantial evidence to overcome the presumption, assuming it is applicable, and to. establish