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L. DISEASE OR INFECTION

Nearly all of the opinions in disease cases for the period covered by Bulletin 87 were found to treat of points other than the connection of disease with accident. The same is true of opinions in disease cases for the period covered by this bulletin. The question of evidence, the question of occurrence of accident, and other questions more remote from the subject of cause and result, are the theme of the eight or ten opinions. Accordingly, with four exceptions, these opinions are under other topics than this, either in Bulletin 95 or in this bulletin.

1. ACCIDENTS DUE TO DISEASE

Insurance carriers, relying upon Collins v. Brooklyn Union Gas Co., have used the argument that disease has caused the accident, rather than the accident disease, in numerous cases, especially in cases obscured by lack of witnesses, absence of notice, etc., but without much success. The Commission has been formulating an exception to the rule that disease causing accident is not compensatable. This exception holds that injury due to fall under special hazard of position is compensatable, even though disease, fainting or other illness has caused the fall. Such falls are subject to the hazard of height or of proximity to dangerous machines. The courts have not yet passed upon this point. The cases are presented under the topic "Fall while under exposure to unusual risk," above, pages 133, 134.

An elevator operator was found at some distance from his elevator crawling upon his employer's floor. The elevator was

a cut on his head

at floor level and in perfect condition. He had and could not tell what had happened to him. He died in hospital. The hospital records stated that he had been suddenly seized with a dizzy spell and had remained unconscious for an hour. He had had a similar attack before. An autopsy found that his death had been due to softening of the brain, following thrombosis of a cerebral artery. The Commission denied death benefits to his widow: Oberlander v. Noyes & Co., 21 S. D. R., 453, Nov. 11, 1919.

2. INFECTION

Interpreting the opinions and decisions of the Court of Appeals in Horrigan v. Post-Standard Co., and the opinion of the Appellate Division in Hiers v. Hull Co. to mean that infection upon the employer's premises suffices for compensatableness, even though the port of entry for such infection is a wound incurred outside the premises and the employment, the Commission has reopened certain anthrax cases and has made awards in place of its former denials of award.

Contraction of glanders through the breath is not an industrial accident. The Appellate Division has so held with lengthy opinion reversing an award: Richardson v. Greenberg, 188 App. Div. 248, May 19, 1919.

These anthrax and glanders cases are presented under the topic "Definition of Accident," above, pages 32-45.

Under the sub-title "Eye," below, page 182, appear some cases of compensation for loss of eyesight through infection from wounds of other parts of the body.

Other infection cases are presented under the sub-title "Blood," below, pages 173-177.

3. OPINIONS AND DECISIONS

Presentation here of opinions and decisions for the period of this bulletin follows and continues the alphabetical presentation of Bulletin 87, pages 208-232. Classification is according to parts of the body primarily affected by the accidents.

a. Appendix

A case of goods slipped and struck a Red Cross laborer in the stomach, aggravating a previously existing appendicitis and disabling him for many months. The Commission awarded compensation to him: Edwards v. American Red Cross, S. D. R., vol. 19, p. 489, Feb. 28, 1919.

An employee slipped and injured his back. The Commission found by the records of its medical department that an “acute perforated appendix," for which he had been operated upon nine months after the slipping, had not been due to the accident. It voted to rescind an award that had been made to him, one Commissioner dissenting: Vezza v. Peirce Bros., 21 S. D. R., 455, Nov. 11, 1919.

b. Arteries

Inhalation of gas in a cellar ruptured an aneurism of a laborer and fitter and caused his death: Mahoney v. Troy Gas Co., S. D. R., vol. 17, p. 602, June 14, 1918; 186 App. Div. 924, Nov. 13, 1918. A monument tilted and fell upon an aged stonesetter crushing his leg and hastening his death by arterio-sclerosis: Penovi v. Graham Granite & Marble Works, Claim No. 39681, Death Case No. 65880, Feb. 15, 1918; 186 App. Div. 924, Nov. 13, 1918. The Appellate Division affirmed awards in the two cases unanimously and without opinion. A loose tack, piercing the foot of an employee, caused an infection which aggravated endarteritis obliterans and necessitated amputation of his leg. The Appellate Division affirmed an award to him unanimously and without opinion: Nybroe v. Mills Estate, S. D. R., vol. 18, p. 637, Bul., vol. 4, p. 104, Jan. 15, 1919; 188 App. Div. 946, May 20, 1919. Hardening of the arteries figured in Graffe v. Art Color Printing Co., S. D. R., vol. 20, p. 441, July 1, 1919; Bul., vol. 3, p. 157, Mar. 14, 1918.

c. Bladder

A pressman fell striking a bench, "causing contusions of the sacro iliac joint and the lower part of the scrotum, and other injuries, together with a severe strain, which injuries caused the development of carcinoma of the prostate and bladder and resulted in his death." The Commission awarded death benefits to his widow and daughters: Schmitt v. Middleditch Co., S. D. R., vol. 15, p. 624, Mar. 1, 1918.

d. Blood

Poisoning of the blood by infection arising out of and in course of the employment is compensatable though the port of infection be a wound incurred outside of hours and after employment: Horrigan v. Post-Standard Co., Death Case No. 3-178, Jan. 17, 1918; 184 App. Div. 921, May 21, 1918; 224 N. Y. Rep. 620, Oct. 22, 1918. History of this case is given above, pages 31, 32. A coremaker died of infection. His widow and daughters testified that he had cut a wart with a pair of shears. The Commission found proof of industrial accident insufficient and denied death benefits. The Appellate Division affirmed the denial unanimously and without opinion: Widdowfield v. Buffalo

Foundry & Machine Co., Death Case No. 16677, June 14, 1917; 185 App. Div. 901, July 2, 1918.

A mason's hammer slipped and wounded the back of his hand. Infectious matter absorbed into the blood from the hand destroyed his right eye. The Commission awarded him compensation but, after about $400 had been paid to him, reopened this case and rescinded its award, basing its action upon an opinion of Commissioner Lyon (S. D. R., vol. 17, p. 616). Upon appeal by the mason, the Appellate Division reversed the Commission's order and reinstated his award because the Commission had followed ex parte opinions of experts that were not in harmony with the facts. The court's opinion is as follows:

FISCHER V. GENESEE CONSTRUCTION Co., 187 App. Div. 850, May 7, 1919. JOHN M. KELLOGG, P. J.: An award was duly made October 8-11, 1917, and, upon a motion to reopen, was duly affirmed January 14, 1918, and several payments were made thereon. It was well sustained by the reports of the employer, the employee, and Dr. Schuhart, who treated the arm, and by the testimony of Dr. Snell, the oculist who treated the eye, and the testimony of Dr. Lewy and Dr. Gelser for the State Fund. The claimant was present, without counsel, but was not called as a witness. An adjournment was had for a week to enable the fund to have the claimant examined by a physician, but upon the adjourned day counsel for the fund stated that "the general opinion seems to be that the loss of his eye is due to his accident," and the record shows that no further testimony was introduced, “largely due to the fact that the representatives of the State Fund, the phy sician who examined him and those familiar with the case were of the opinion that the claimant had sustained a systemic septicaemia as the result of the injury to the hand and that caused the iritis, and subsequent loss of use of the right eye."

July 24, 1918, by the order under review, the Commission annulled the award and dismissed the claim. Its decision is based upon the written opinions of two physicians. One of the opinions was written after the hear ing was closed, and neither opinion seems to have been made a part of the record at any hearing, and the claimant apparently had no knowledge of them and no chance to cross-examine or to be heard with reference to them. This practice did not give him the fair hearing contemplated by the statute and the order should, therefore, be reversed. (Holmes v. Communipaw Steel Co., 186 App. Div. 645.)

The award was final and conclusive against the State Fund, no appeal hav ing been taken. (Workmen's Compensation Law, § 23.) Nevertheless, the Commission had continuing jurisdiction over the case, with power to change its determination as justice may require. (§ 74.) The presumption raised by section 21, and the provisions of section 23 and of section 20 (as amd. by Laws of 1917, chap. 705) prevent an interference with the award on the facts, unless there is substantial evidence of a mistake which, in the interest

of justice, compelled such action. Sections 22 and 74 must be given a broad and liberal interpretation, and, as circumstances arise, must be held to cover cases which we cannot in advance anticipate. They are intended to remedy an apparent injustice. The State Fund so far assented to this award that it would not be permitted a review upon appeal. (Cunningham v. Buffalo Copper & Brass Rolling Mills, 171 App. Div. 955, 956.) Neither, upon its application, should the Commission annul the award except upon new evidence clearly showing its injustice and that the counsel for the Commission was deceived, overreached or acted upon a clear mistake of fact. The mere fact that cumulative evidence has been found which might bear negatively upon a question of fact already amply proved and understandingly conceded, is not in itself a basis for annulling the award. Public policy requires that there should be a reasonable end to litigation, and that issues once fairly tried and stipulated, with full knowledge of the facts, should not be disturbed except for some compelling reason in order to prevent a miscarriage of justice or a manifest wrong. The power to change an award is not an arbitrary one, but a judicial discretion, to be exercised only in the interest of justice. The award was a property right, which cannot be destroyed unless it definitely appears that, as a matter of justice, it should not stand. We may profitably consider whether there is any substantial evidence against the award and whether justice requires its annulment. The decision under review is so out of harmony with the uniform decisions of the Commission in like cases against other insurance carriers that it evidently rests upon a mistake of law or fact. (See Caine v. Greenhut & Co., 13 State Dept. Rep. 515; 181 App. Div. 907; Abelson v. Steinway & Sons, 188 id. 942.) The liability of the State Fund is in all respects the same as that of any other insurance carrier, and is established by like proof. That rule is so well understood that we conclude that the Commission relied too much upon the statements and conclusions found in the expert opinions. It is evident that the physicians were misinformed as to the facts, or did not fully appreciate them. The opinions, if they had been properly received in evidence, would form no substantial basis for annulling the award. Neither physician had examined the claimant. In fact one physician, called by the fund at the hearing, had examined him, and gave evidence favorable to him. Another examined the claimant at the request of the fund, and it was stated at the hearing that he concluded that the loss of the eye resulted from the injury to the hand. The opinions upon which the decision under review was made are not based upon the facts of the case. Each opinion, in substance, assumed that the claimant was not sick and that the trouble with the eye developed, in the case of a well man. The evidence shows that, immediately after the accident, the hand and arm to the armpit became very much swollen, inflamed, red and tender, and that while the swelling was at its worst, the deposit of infectious matter, concededly from within, lodged at the eye, and that claimant lost thirty pounds in weight in about three months, was unable to work, was not feeling well at all, was complaining of his hand and of rheumatic pains; that he had attempted to do two or three things and could not do them and, about seven months after the accident, was still disabled from headaches and dizzy spells, together with poor vision. The claimant was not sworn and was without counsel. The Commission made such inquiry as to it seemed best, and it did not inquire of him as to the symptoms or the

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