Claim of McCormack v. National City Bank

Conway, J.

(dissenting). I concur with Judge Dye.

The board in its findings determined that the deceased was employed as an elevator operator and helper to the elevator mechanic; that while the deceased was assisting the elevator mechanic in repairing a passenger elevator, at the employer’s business building in New York.City and was engaged in the regular course of his employment, he accidentally fell and struck his head; that as a result of the fall, the deceased sustained accidental injuries in the nature of a cerebral concussion, rupture of a pre-existing aneurysm and a hemorrhage of the brain resulting in his death on January 1, 1946; that his death *15was the natural and unavoidable result of the accidental injuries which he sustained on December 18, 1945, and the consequences and results flowing therefrom; that when found on December 18th at 10:00 a.m., the deceased was lying unconscious on the floor of the second-story corridor of his employer’s premises where he was employed; that his body was in a diagonal position with his feet about six inches and his head about two feet from the elevator which he had been repairing, with oily cloths lying about; that there was an area of skin abrasion and discoloration on the right side of his forehead; that the fall which he sustained was accidental and was not caused by reason of any underlying pathological condition or any other inherent factor or condition and arose out of and in the course of his employment. The award was unanimously affirmed by the Appellate Division.

The only evidence offered by the employer and the insurance carrier was the testimony of two doctors who had never seen the deceased and who gave opinion evidence. It was their opinion that the death of deceased was caused by the pre-existing aneurysm and was not the result of an accident.

Doctor Shapiro, who was called when the deceased was found lying on the second floor of the employer’s building and who later testified in this proceeding for the claimant, said that when he examined the deceased, there was an area of skin abrasion and discoloration of the right side of the forehead and that the patient was lying on his back. He was then asked whether he could tell from his examination what type of injuries might have caused the abrasion and discoloration. He said: “ He might have struck the area. There was a mechanical injury of some sort. I mean, it is hard to tell whether he was struck over the head by a blunt object or hit it against something. You know that abrasions are caused by some degree of injury and, of course, the discoloration also. But, I mean, the nature of the injury — I can’t possibly determine by the effect.”

Again, he said at folios 393 to 395: “ Q. Doctor, is there any medical way of determining whether or not this hemorrhage from which Mr. Scott was suffering from on December 18th came from a prior condition of Mr. Scott or was induced by some outside forces? A. Well, there is no accurate way of stating definitely. We know he had a hemorrhage of the brain. I also *16take it for granted you are referring to an autopsy report of .which I received a copy of, indicating that the man had a ruptured aneurysm at the base of the brain. We know definitely that aneurysm pre-existed. There is no question about that because it takes an extended period of time for an aneurysm to form. We also know that an aneurysm can rupture spontaneously but it can also rupture from a blow. Now, which came first? That is, whether the aneurysm ruptured spontaneously or he had received a blow of some sort — I have definitely no way of determining, in all fairness to all parties concerned.” (Emphasis supplied.)

In view of (1) those facts and the inferences which the board found flowed reasonably therefrom, (2) the presumption under section 21 of the Workmen’s Compensation Law that the claim comes within the provision of the chapter, and (3) the basic rule of administrative law, embodied in section 20 of the Workmen’s Compensation Law, that the decision of the board is final as to all questions of fact, we may not under our jurisdiction say that the award was unsupported by any evidence in the record.

The presumption in section 21 has been prescribed by our Legislature by reason of the difficulty in establishing the cause of death in cases, among others, where the person injured dies as a result of an unwitnessed occurrence, so that, as a social problem, his dependents may not suffer because there were no witnesses present. In such cases external injuries and the position of the body when found are facts from which the board may draw inferences which even under common-law rules may not be rebutted as a matter of law by opinion evidence. At common law, the trier of the facts may disregard opinion evidence if his judgment indicates that that should be done or he may give it such weight as he sees. fit.

The only evidence here in contradiction of the facts found and inferences drawn by the board is that of two opinion witnesses. That opinion testimony, even if uncontradicted, which was not the case here, was subject to the exercise by the board of its independent judgment. Thus, in People ex rel. Third Ave. R. R. Co. v. State Bd. of Tax Comrs. (212 N. Y. 472, 485), we said: “ * * * Opinion testimony, even if uncontradicted, was subject to the exercise by the trial court of its independent, judg*17ment. While it is, speaking generally, true that a jury has not the right, arbitrarily, to ignore or discredit the testimony of unimpeached disinterested witnesses, so far ,as they testify to facts, and that willful disregard of such testimony will be ground for a new trial, no such obligation attaches to witnesses who testify merely to their opinion; and the jury may deal with it as they please, giving it credence or not as their experience or general knowledge of the subject may dictate. (The Conqueror, 166 U. S. 110.) * * *."

Similarly, we said in Commercial Cas. Ins. Co. v. Roman (269 N. Y. 451, 456-457): * * * Even though no testimony was offered by the plaintiff to contradict the testimony of these experts, it was still within the province of the jury to reject their testimony altogether. The weight to be given to opinion evidence ordinarily is entirely for the determination of the jury. * * *” To the same effect are Ensign v. Travelers Ins. Co. (193 App. Div. 369, 386-387, affd. 233 N. Y. 521); Matter of Horton (272 App. Div. 646, 651, affd. 297 N. Y. 891); Lipson v. Bradford Dyeing Assn. (266 App. Div. 595, 598); Shabotzky v. Equitable Life Assur. Soc. (257 App. Div. 257, 260).

Much more so is that the case in workmen’s compensation cases since the act was passed as a new step forward in the field of social legislation and originally provided, as it still does (§ 118, formerly § 68), that the board was not to be bound either by common-law or statutory rules of evidence but was to act on the hearing in such manner as to ascertain the substantial rights of the parties.

The case of Matter of Green v. Geiger (253 App. Div. 469, 255 App. Div. 903, affd. 280 N. Y. 610) seems to me clearly in point. There the medical opinion witnesses testified that it could not be determined whether the deceased came to his death by accident or natural causes. Despite the non-opinion evidence to the effect that the deceased had sustained an accidental injury, the board folloioed the doctors and found there was no accident. The Appellate Division, in an excellent opinion, reversed and sent the proceeding back to the board, saying (253 App. Div., p. 471): “ The record indicates that the Board thought that the evidence would not justify a finding of accidental death in view of the testimony of the health officer that he did not know *18whether the alleged accident was indirectly the cause of death. We infer that if the physician had testified that in his opinion the exertion did aggravate the heart condition and indirectly bring about death, the Board would have felt justified in making á finding to that effect. It is apparent that the physician could not thus testify with certainty. The law does not require proof of such positiveness. It is sufficient if from the facts a reasonable inference arises that the exertion caused the death ” (emphasis supplied). After a rehearing, the board found for the claimant and its award was affirmed by the Appellate Division (255 App. Div. 903) and this court (280 N. Y. 610). The medical testimony in the Green case (supra) was substantially the same as that of Doctor Shapiro here and the board, in here finding that there was an accident, drew the inference suggested in the Green case. The board did not have to believe the opinion testimony of the insurance carrier’s medical witnesses as against the facts and inferences warranted by the other evidence. See, also, Matter of Welz v. Markel Service, Inc. (270 App. Div. 15, affd. 296 N. Y. 640); Matter of Lauer v. Y. M. & W. H. A. of The Bronx (266 App. Div. 42, 269 App. Div. 870, motion for leave to appeal denied 295 N. Y. 990); Matter of Hoffman v. New York Central R. R. Co. (290 N. Y. 277).

The order appealed from should be affirmed, with costs.

Loughran, Ch. J., Desmond and Froessel, JJ., concur with Ftjld, J.; Dye, J., dissents in opinion in which Lewis, J., concurs ; Conway, J., concurs with Dye, J., in a separate opinion.

Order reversed, etc.