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other purposes; the Appellate Division unanimously affirmed an award of death benefits: Donlon v. Kips Bay Brewing & Malting Co., Death Case, No. 227250, Apr. 30, 1919; 189 App. Div. 415, Nov. 12, 1919. Text of the Appellate Division's opinion in the Donlon case is in Bulletin 97, page 103.
The night watchman of a derrick lighter in the Hudson river disappeared and was never found. There was some evidence that he had been at his duties as fireman alone aboard the lighter on the Sunday night of his disappearance and had slipped from a gangplank into swiftly flowing water. The employer objected that there had been complete failure to establish accident and death. The Appellate Division affirmed an award to the fireman's widow unanimously and without opinion: Norman v. Merritt & Chapman Derrick & Wrecking Co, Death Case, No. 69637, June 2, 1919; 190 App. Div. 887, Nov. 12, 1919.
A lumber handler, awaiting arrival of his employer's truck at a railroad freight car, went to a telephone to inquire when the truck would arrive; shortly afterward a train ran him down and killed him; there being no substantial evidence to the contrary, the Appellate Division said that it must be presumed that the accident arose of and in the course of his employment; the Court of Appeals affirmed its order approving an award to his widow: Smith v. Oesterheld & Son, Death Case, No. 72550, Apr. 4, 1919; 189 App. Div. 384, Nov. 12, 1919; N. Y. Rep. May 4, 1920. Text of the Appellate Division's opinion in the Smith case is in Bulletin 97, p. 109.
In the course of his duties, alone in a cellar at night, a fireman in a chewing gum factory "received a severe blow on the head which rendered him unconscious and caused a laceration of the nose and face, and of the left eye and back of the head" (21 S. D. R. 430). He was unable to explain his accident. The employer claimed upon appeal that he had been hurt about the head before and that his injuries were due to a fall caused by disease. The Appellate Division affirmed the award unanimously, and with opinion as follows:
VOGEL V. AMERICAN CHICLE Co., 190 App. Div. 797, March 3, 1920. COCHRANE, J.: The sole argument against this award is that the injuries of the claimant did not arise out of his employment. The employer was a
manufacturer of chewing gum and the claimant was a night fireman. He was gathering paper and rubbish from the bottom of an elevator shaft and was depositing the same in a box for the purpose of lighting the boiler fires. He had lifted the box from the floor of the elevator shaft to the floor of the building when he received a severe blow on the head which rendered him unconscious and he has not been able to describe the cause of the accident. We think, however, there is evidence connecting the accident with the employment. No one was present at the time of the occurrence. The claimant had previously been in good health and had experienced no fainting spells. The circumstances are such that he might easily have struck his head against some portion of the building or structures therein. The nature of his injuries indicate that such is the case. He was lacerated on the nose and face and back of the head. Injuries such as he sustained both to the front and back of the head would not ordinarily result if he had merely fallen. If, however, he struck his head against an object with sufficient force to cause him to fall and render him unconscious such injuries might result both from the blow and the fall. Furthermore in its report of the injury the employer treated the occurrence as an accident. It states that an accident happened on the premises and that the claimant was doing his regular work. This constitutes some evidence in his favor.
The award should be affirmed. Award unanimously affirmed.
An employee retired to a river bank to answer a call of nature. Shortly thereafter, his fellow employees found his dead body in the river. The Commission, with a divided vote of three to two, awarded death benefits to his mother. Upon appeal, the Appellate Division held that the presumptions of the law had been overcome by substantial evidence to the contrary. It reversed the award and dismissed the claim, with opinion as follows:
MINERLY V. KINGSBURY CONSTRUCTION Co., 191 App. Div. 618, May 5, 1920.
COCHRANE, J.: The qu tion in this case is whether the accident arose out of the employment. The deceased employee was engaged with others in leveling a pile of stones which had been thrown up near a river bank by a dredge at Mechanicville, N. Y. While so working he was stricken with a fit to which malady he was subject. He came out of the fit and resumed his usual work. A short time thereafter he proceeded up the river bank for a purpose incidental to his employment. Not returning, his fellowemployees instituted a search for him and discovered his dead body in the river in a depth of five feet of water. His death was caused by drowning. No feature or incident of his work required him to enter the water at that place. His body when found was "all curled up" in about the same condition as it was when he had the fit shortly before at which time he was also described as "lying all curled up." The place of his death was one hundred or one hundred and fifty feet from where his fellow-employees were engaged in their work. On these facts the Commission by a closely divided vote has found that the accident arose out of the employment.
The cause of the accident cannot be presumed but must be established. (Eldridge v. Endicott, Johnson & Co., 228 N. Y. 21; Collins v. Brooklyn Union Gas Co., 171 App. Div. 381; White v. American Society for Prevention of Cruelty to Animals, 191 App. Div. 6; Nestor v. Pabst Brewing Co., 191 App. Div. 312; Woodruff v. Howes Construction Co., 228 N. Y. 276.) Even if the presumption of section 21 of the Workmen's Compensation Law should apply the circumstances surrounding the accident would seem to constitute "substantial evidence" sufficient to overcome the presumption. It seems unreasonable to infer that a well and able-bodied man could have drowned under the circumstances here existing. As stated above there was no occasion for the deceased to enter the water. It is not suggested that there was a dock or embankment from which he could have fallen into water of any considerable depth. An ordinary man would not be submerged in water five feet deep and would experience no difficulty in reaching the shore only a few feet distant. No outcry or alarm was heard by the fellow-workmen of the deceased who were within easy hailing distance. The only reasonable inference is that he was overcome by another attack of his constitutional malady and because thereof fell from the river bank into the water. This theory harmonizes with all the evidence in the case and is the only reasonable explanation of the accident. The case is similar in this respect to Matter of Hansen v. Turner Construction Company, (224 N. Y. 331.) If there were other circumstances bearing favorably on the claim is was incumbent on the claimant to prove them. On the evidence produced the accident did not arise "out of" the employment.
The award should be reversed and the claim dismissed. All concur. Award reversed and claim dismissed.
The Appellate Division remitted for further evidence the case of a scow captain to whose widow the Commission had awarded death benefits upon the ground that he had been drowned by the sinking of his vessel: Nielsen v. Harms Co., Death Case, No. 325005, May 5, 1919; 190 App. Div. 962, Jan. 9, 1920; and the case of a longshoreman to whose children the Commission had awarded death benefits upon the ground that he had died of exposure to zero weather and exhaustion in the hold of a ship's hatch, his body having been found there about a week after he had last been seen at work upon the vessel: Coleman v. Carter & Weekes Stevedoring Co., Death Case, No. 48849, Apr. 23, 1919; 189 App. Div. 884, Sept. 18. 1919.
XV. COMMISSION'S POWER TO REVISE OR
The general subject of the Commission's power to reopen compensation cases and modify its awards and rulings is covered by the court decisions and opinions in Bulletin 95, pages 356-374. The courts have liberally sustained the Commission's power of revision. Nevertheless the briefs of appellants continue to challenge its exercise. The challenge has succeeded in one instance and in so doing has developed a point not set forth in Bulletin 95. The power of the Commission to modify an award is limited by the final sentence of Workmen's Compensation Law, § 22, which declares that review shall not affect moneys already paid. When the Commission reopens a case and increases or decreases the amount of the award, it can not make such increase or decrease retroactive. The increase or decrease is effective for the future only. The Court of Appeals has so interpreted the final sentence of 22 in Solotar v. Neuglass & Co., Death Case, No. 33580, Oct. 16, 1918; 188 App. Div. 942, May 7, 1919; 228 N. Y. Rep. -, Jan. 20, 1920. In the Solotar case the Commission on May 21, 1917, awarded death benefits to the deceased employee's mother at the rate of $2.45 per week. A year and seven months later, on October 16, 1918, it reopened the case and increased the award to $3.75 per week, because the deceased employee had been a minor and his wages would be expected to increase. On December 31, 1918, it again heard the case and awarded the mother the difference between $2.45 and $3.75 for the period of May 21, 1917, to October 18, 1918, and the full amount of $3.75 from October 16, 1918, onward. The Appellate Division affirmed this award but the Court of Appeals modified it to provide that the increase should not take effect for the time prior to October 16,
Besides the Solotar case, other cases subsequent to June, 1919, in which the employer and insurance carrier have challenged the Commission's power to review are: Fish v. Rutland R. R. Co., Claim No. 10850-A, Feb. 28, 1919; 189 App. Div. 352, Nov. 12, 1919; Arcieri v. Booth & Flinn, Case No. 200169, Jan. 27, 1919;
190 App. Div. 885, Nov. 12, 1919; Freess v. Kleinau, 21 S. D. R. 179, May 27, 1919; 190 App. Div. 131, Dec. 29, 1919; Eggleston v. Shinola Co., Case No. 20799, June 20, 1919; 191 App. Div. 930, Mar. 3, 1920; Vaselento v. Kasenetz, Case No. 39482, June 25, 1919; 190 App. Div. 879, Mar. 3, 1920; Clark v. Miller Stock Farm, 20 S. D. R. 434, June 12, 1919; and Castor v. Collegiate Baptist Church of the Covenant, 21 S. D. R. 437, Nov. 11, 1919.