Death Benefits Awarded in Spite of Smoking Habit and High Cholesterol
A decision by New York’s Workers’ Compensation Board, which concluded that a construction worker’s death was causally-related to his employment, was recently affirmed by a state appellate court, in spite of preexisting risk factors such as decedent’s smoking habit and high, untreated cholesterol [see Matter of Pickerd v Paragon Envtl. Constr., Inc., 2018 N.Y. App. Div. LEXIS 3700 (3rd Dept., May 24, 2018)].
Decedent sustained a myocardial infarction and collapsed while assisting a coworker with the removal of an underground gasoline tank. He died three days later, having never regained consciousness. Decedent had been using an excavator to break up concrete and scrape pea stones off the top of the gasoline tank. He collapsed shortly after retrieving a pipe wrench from his truck and descending into a three-foot-deep pit near the tank.
a board-certified cardiologist, testified that, despite the presence of the preexisting risk factors, decedent’s operation of the excavator and retrieval of the pipe wrench were significant precipitating factors that caused the plaque rupture leading to the fatal myocardial infarction. A physician who reviewed decedent’s medical history on behalf of the carrier attributed the heart attack to decedent’s cardiac risk factors.
Employment Needed Only to be a Contributing Factor
The appellate court acknowledged the testimony of the carrier’s expert, but observed that decedent’s work need not be the sole agent of death; it was sufficient if it was only a contributing factor. It was within the Board’s province to resolve the conflicting medical evidence in claimant’s favor. Practitioners should note that the court’s decision did not utilize the presumption contained in N.Y. Work. Comp. Law § 21(1).