(dissenting). When the Appellate Division unanimously affirmed the finding of the Workmen’s Compensation Board that the decedent’s disability and death were the proximate result of an injury sustained in and by reason of his employment, it placed such factual issue beyond our reach (Workmen’s Compensation Law, § 20) except as provided in section 23 of the Workmen’s Compensation Law.
*12The employer and its carrier discern a reviewable question of law based on an alleged erroneous application of the presumption provided for use in an unwitnessed accident case (Workmen’s Compensation Law, § 21), it being claimed the proof failed to establish the happening of an' accident, absent which the presumption is unavailing. I agree that the presumption may not be used as a substitute for proof of accident and that it is only available in unwitnessed accident cases when the happening of an accident has been established. Here there is affirmative proof of accident giving rise to the presumption that the claim was within the provisions of the Workmen’s Compensation Law. What is lacking is “ substantial evidence to the contrary ”, absent which the presumption must be made effective.
As I see it, this is a typical unwitnessed accident case. The proof establishes that the deceased was found unconscious on his employer’s premises during working hours in a place where he had been assigned to do work in the repair of an elevator and that when found his body bore marks of injury; that while engaged in such work, which for the time being was not completed— but only temporarily interrupted for lack of a tool which a fellow employee had gone to get— and while his fellow employee was so absent, a patron of the building found the decedent lying on the floor near the elevator, his tools scattered about him and an oily rag near his hand. A physician who came almost immediately and concededly before decedent had been moved, testified at the hearing that decedent was “ entirely unconscious ” — “ in quite severe shock” — that “ there was an area of skin abrasion and discoloration on the right side of the forehead ” — which would indicate that “ he had received some degree of trauma ” —that it “ was a mechanical injury of some sort ”, and that “ there was evidence of severe cerebral concussion ”. This witness in his attending physician’s report had stated that the accident sustained on December 18, 1945, was a competent producing cause of injury, which statement was repeated in a report filed after decedent’s death. When asked his views in light of the autopsy, report that death had resulted from the rupture of a pre-existing aneurysm the possibility of contributory traumatic causation was not excluded, but reas*13sorted. In the hearing minutes we may read, viz.: “ Q. What did you have in mind, Doctor, when you said in your C64 that the injury received on December 18, 1945, that it indirectly caused the death? A. If this man had a fall and he struck his head, if that were the history that could be determined then 1 would say that the fall could cause a hemorrhage at the base of the brain. That is, the fall could cause that aneurysm to rupture even though he had an aneurysm there.”
At another point, to use the physician’s own language: “ We also know that an aneurysm can rupture spontaneously but it can also rupture from a blow. * * * We don’t know just when that aneurysm broke, whether it broke the first day [Dec. 18th when deceased was found unconscious by the elevator] or the second time it happened [Dec. 28th when deceased in attempting to get out of bed became dizzy, fell and struck his head] or the third time [on Jan. 1st when he suffered a convulsion and died]. ’ ’
No evidence was offered which in any way disproved the existence of the abrasion and discoloration or which might give rise to an inference that it had not accidentally occurred on the job. The employer and the carrier challenge its causal connection giving rise to a question of weight of evidence rather than proof. They produced medical experts who had not seen or treated the decedent in his lifetime but who depended on their professional experience and the report of autopsy to testify that in their opinion, the injury was superficial, did not cause death or contribute thereto but that death was due solely to the spontaneous rupture of the pre-existing aneurysm. The board and the court below were not bound to accept this opinion testimony and reject the claimant’s testimony but were entitled to exercise their independent judgment (People ex rel. Third Ave. R. R. Co. v. State Bd. of Tax Comrs., 212 N. Y. 472; Commercial Cas. Ins. Co. v. Roman, 269 N. Y. 451) and this is permissible even in the face of medical opinion that cause of death, whether by accident or natural causes, could not be determined (Matter of Green v. Geiger, 253 App. Div. 469, 255 App. Div. 903, affd. 280 N. Y. 610). The test of the matter is not what ultimately caused death — in this instance, a massive hemorrhage at the base of the brain — but whether there had been an industrial *14accident within the contemplation of the Workmen’s Compensation Law. We may not rule out evidence of the obvious head injury as being so insubstantial as to be no evidence and upon which the board was not justified in relying. Such a proposition would, of course, be contrary to every concept of the Workmen’s Compensation Law. Many an injury — trivial when suffered by a normally well person — has lighted up a latent pathological condition leading to serious and sometimes fatal results and has entitled the victim or his dependents to compensation benefits. This is as it should be and there is nothing here to warrant making an exception to this well-recognized rule.
The compensation law from the beginning has received, and quite properly so, a liberal interpretation in accordance with its remedial character as a broad social enactment. We have recently ruled that an industrial accident is not to be determined by legal definition “ but by the common-sense viewpoint of the average man ” (Matter of Masse v. Robinson Co., 301 N. Y. 34, 37; Matter of Carpenter v. Sibley, Lindsay & Curr Co., 302 N. Y. 304), nor do we think that under the circumstances the award is lacking in proof because the decedent subsequent to regaining consciousness was unable to state how the accident had happened, for absent such statement, there was nonetheless an independent and obvious mark of injury on his forehead which was not explained away. There was proof and enough to sustain the finding of an accidental injury, justifying the presumption that such injury was sustained in and by reason of the employment. Here such presumption was not overcome.
The order appealed from should be affirmed, with costs.