The question in this case is whether any causal relation between the injury and death of the deceased has been established.
On June 1, 1918, Andrew Nestor, the husband of the claimant, sustained injuries consisting of a dislocated shoulder and contusions. The dislocation was immediately reduced and he remained under the care and treatment of a physician until July 5, 1918. He never resumed work. On July 21, 1918, he fell in the street and was assisted to his home where he died the same day without medical attendance. The death certificate filed in the department of health of the city of New York recited that “ the chief and determining cause of his death was chronic cardiac valvular disease.”
The finding of the Commission connecting the death with the accident is as follows: “The cause of death is given as ‘ chronic cardiac valvular disease.’ The injuries sustained on June 1, 1918, so aggravated a previously existing heart lesion as to bring about decompensation and an acute condition which resulted in the death of Andrew Nestor on July 21, 1918.”
There is absolutely no evidence that the deceased had a heart lesion at the time of the accident. There is no evidence that the cause of death was heart disease unless it be the death certificate. It is stated that this constituted some evidence of such fact, but if so it was only presumptive evidence of the facts therein stated. And a presumption disappears in the presence of substantial evidence to the contrary. (Rose v. Balfe, 223 N. Y. 486; Potts v. Pardee, 220 id. 431; Fallon v. Swackhamer, 226 id. 447.) The only physician called as a witness was Dr. Smith who treated the deceased from June 3, 1918, until July 5, 1918, always at his office where the deceased went to receive such treatment. He examined his heart twice during that time and found no difficulty therewith. On the latter date he discharged the patient. When he discharged him he did not think the deceased had any condition which would cause death in a short time. When the death certificate was called to the attention of the physician he testified that he did not think the injury had anything to do with his death. He further testified: “ I don’t think he died with the cause of death as written on that death certificate — I don’t think that *314is the real cause of death. * * * There is nothing in this injury, as far as I could see, that could have anything to do with it.” The widow of deceased testified that he never had heart trouble or was sick before the injury.
It appears that the person who signed the death certificate had never seen the deceased during life. He was not present at death nor for three hours thereafter. No physician saw him within sixteen days of his death. No autopsy was performed after death. Nor do the circumstances, reasons or facts appear on which was based the statement that the cause of death was cardiac valvular disease. And furthermore the certificate bears on its face a notice that “ The Department of Health of the City of New York does not certify to the truth of the statements made thereon, as no inquiry as to the facts has been provided for by law.” The certificate being at most presumptive evidence only is entirely destroyed by the testimony of Dr. Smith and the circumstances under which it was made. The finding above set forth in order to sustain the award must rest on a legal foundation. It cannot be presumed but must be proved. (Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326; Matter of Carroll v. Knickerbocker Ice Co., 218 id. 435; Matter of Eldridge v. Endicott, Johnson & Co., 228 id. 21.) The error of the Commission consists in basing its conclusion solely on the unsupported and uncorroborated death certificate, which certificate constituting only presumptive evidence was conclusively overcome by the other evidence in the case under the authorities cited.
The chief medical examiner of the Commission rendered an opinion, but it does not supply the deficiency, first, because his opinion was not given as evidence with an opportunity for cross-examination, but was furnished to the Commission outside of the hearing, and second, because his opinion assumes the cause of death as stated in the death certificate and is based thereon. The Commission accepted this opinion and made its findings accordingly. The Commission and its chief medical examiner both fell into the same error.
If the Commission had disregarded the death certificate and . had merely found that death resulted from the accident, basing such finding on the fact that the deceased was in good health at the time of the accident and was in poor health from that *315time until the time of his death, a different question would be presented. The difficulty is that the Commission has not adopted that theory, but on the contrary has found as a fact inconsistent therewith that he was not in good health at the time of the accident.
The award should be reversed and the matter remitted to the Commission.
All concur, except John M. Kellogg, P. J., dissenting, with an opinion.