concurs. -
Hasbrouck, J.,votes for reversal as to the physician’s bill, and for affirmance as to the hospital bill.
Hill, J.An award of $259 for medical and surgical treatment, hospital service, drugs and a hernia truss has been made to an injured employee. The employer directed the surgeon to operate *483and provide necessary service. The claimant paid therefor from Ms own funds, and this award is to reimburse him. Under the decisions of the Court of Appeals and this court, construing section 13 of the Workmen’s Compensation Law, as it existed prior to the amendment effective July 1, 1927 (Laws of 1927, chap. 553), the award should be modified by striking therefrom $118 for medical and surgical treatment, and affirmed as to the hospital services and truss. (Sandberg v. Seymour Dress Co., 215 App. Div. 728; affd., 242 N. Y. 497; Matter of Lam v. Wolff Advertising Co., 224 App. Div. 801.)
The amendment added the following new sentence after the one which, among other things, requires a physician giving treatment to furnish a written report to the employer and the Industrial Commissioner: “ The Board may, however, by the unanimous vote of all the qualified members, excuse the failure to give such notice within twenty days when it finds it to be in the interest of justice to do so, and may, subject to the limitations contained in section twenty-eight of this chapter, make an award for the reasonable value of such medical or surgical treatment.” The sentence which follows the new one quoted above was amended, by adding the words “ whether furnished by the employer or otherwise,” to read as follows: “ All fees and other charges for such treatment and services, whether furmshed by the employer or otherwise, shall be subject to regulation by the Board as provided in section twenty-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living.” TMs amendment abrogates the rule stated in Sandberg v. Seymour Dress Co. (supra). The Board did not make a finding excusing the failure by the physician to give the notice required to be given witMn twenty days as the statute would indicate to be the better procedure. In the interest of obviating delay, We may regard the award by the Board to be tantamount to excusing the failure; but we disapprove the practice and think such a finding should be made in future cases.
The injury was received and the services rendered before the act became effective; the decision was made afterward, and as the amendment changed procedure only, it applied to pending claims and matters as well as those that later arose. (Lazarus v. Metropolitan Elevated Railway Co., 145 N. Y. 581.)
I favor affirmance.