The injured employee broke his leg September 10, 1918. He was taken to a hospital where he received treatment for ten days. He was then taken home and there received medical treatment for the fracture for a period of eight or ten weeks. He had then apparently recovered and medical observation ceased. He did not, however, return to his work. Two or three weeks previous to August 7, 1919, a physician was called who discovered that the employee was suffering with pulmonary tuberculosis, from which disease he died on the date last mentioned. The claim is resisted on the ground that no causal relation has been established between the accident and the death of the employee.
The Commission has followed the objectionable practice of incorporating in its findings the facts contained in its opinion. That practice was condemned in Matter of Lorchitsky *857v. Gotham Folding Box Co. (230 N. Y. 8). Turning to the opinion, therefore, as we are required to do in order to find out what the Commission decided, we find a very brief discussion of the medical testimony, concluding with this statement by the Commissioner writing the opinion: “ I think this is a case that must follow the presumption of section 21 of the law and I direct an award.” The opinion was adopted as the opinion of the Commission.
If this opinion means anything it means that the Commission could not determine from the evidence that the tuberculosis was the result of the accident and that in making the award the Commission relied on a presumption supposed to be created by section 21 of the Workmen’s Compensation Law. The Commission had no right to rely on such presumption. It has been so frequently held both by the Court of Appeals and by this court that the presumption created by that section does not relieve the claimant from the necessity of establishing his claim by legal evidence that the citation of those decisions would be superfluous. However, one of the most recent decisions to that effect is the case above cited. If the Commission could not decide from the evidence that the employee died as a result of the accident it was its duty to dismiss the claim. It is immaterial on this appeal whether or not the evidence was such that the Commission might have found therefrom as a proper inference that the tuberculosis resulted from the accident. The Commission makes it clear that it has not so found but has erroneously relied on a presumption of liability which does not exist.
The award should be reversed and the proceeding remitted to the Commission.
All concur,. except Kilby, J., dissenting, with an opinion, in which John M. Kellogg, P. J., concurs.