Calendar Date: May 3, 2018Before: McCarthy, J.P., Devine, Clark, Aarons and Pritzker, JJ.__________Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. GeyerJr. of counsel), for appellants.Barbara D. Underwood, Attorney General, New York City(Donya Fernandez of counsel), for Workers’ Compensation Board,respondent.__________Devine, J.Appeal from a decision of the Workers’ Compensation Board,filed September 9, 2016, which ruled, among other things, thatdecedent’s death was causally-related to his employment andawarded workers’ compensation death benefits.On November 20, 2013, claimant’s husband (hereinafterdecedent) sustained a myocardial infarction and collapsed whileassisting a coworker with the removal of a gasoline tank.Decedent never regained consciousness and died three days later.Thereafter, claimant filed a claim for workers’ compensationbenefits and a claim for death benefits that were bothcontroverted by the employer and its workers’ compensationcarrier (hereinafter collectively referred to as the carrier).Following hearings, a Workers’ Compensation Law Judge found thatdecedent’s work activities contributed to the myocardialinfarction and that his resulting death arose out of and in thecourse of his employment. The Workers’ Compensation Boardagreed, and the carrier now appeals.We affirm. Preliminarily, we note that the Board’sdetermination of causality was not based upon the presumptioncontained within Workers’ Compensation Law § 21 (1) and insteadrelied upon the medical evidence and hearing testimony (seeMatter of Kilcullen v AFCO/Avports Mgt. LLC, 138 AD3d 1314, 1315[2016]; Matter of Roberts v Waldbaum’s, 98 AD3d 1211, 1211[2012]).As for the merits, “[a] heart injury precipitated bywork-related physical strain is compensable, even if apre-existing pathology may have been a contributing factor andthe physical exertion was no more severe than that regularlyencountered by the claimant” (Matter of Gallo v Village ofBronxville Police Dept., 120 AD3d 849, 850 [2014] [internalquotation marks and citations omitted]; accord Matter ofKilcullen v AFCO/Avports Mgt. LLC, 138 AD3d at 1315). Decedent’scoworker testified that, at the time of the incident, he anddecedent were in the process of removing an underground gasolinetank. Decedent had been using an excavator to break up concreteand scrape pea stones off the top of the gasoline tank. Hecollapsed shortly after retrieving a pipe wrench from his truckand descending into a three-foot-deep pit near the tank. AshokPatel, a board-certified cardiologist, testified that, despitethe presence of preexisting risk factors such as decedent’ssmoking habit and high, untreated cholesterol, decedent’soperation of the excavator and retrieval of the pipe wrench weresignificant precipitating factors that caused the plaque ruptureleading to the fatal myocardial infarction. A physician whoreviewed decedent’s medical history on behalf of the carrierattributed the heart attack to decedent’s cardiac risk factors,but decedent’s work need not be the sole agent of death and needonly be a contributing factor (see Matter of Lavigne v HannafordBros. Co., 153 AD3d 1067, 1069-1070 [2017]; Matter of Mellies vConsolidated Edison Co. of N.Y., Inc., 140 AD3d 1543, 1544[2016]). Inasmuch as it was within the province of the Board toresolve this conflicting medical evidence in claimant’s favor(see Matter of Lavigne v Hannaford Bros. Co., 153 AD3d at 1069;Matter of O’Donnell v Town of Moriah, 58 AD2d 702, 702 [1977]),its determination that claimant had shown decedent’s death to becausally-related to his employment is supported by substantialevidence and will not be disturbed (see Matter of Kilcullen vAFCO/Avports Mgt. LLC, 138 AD3d at 1316; Matter of Roberts vWaldbaum’s, 98 AD3d at 1211-1212).McCarthy, J.P., Clark, Aarons and Pritzker, JJ., concur.ORDERED that the decision is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
