180 A.D. 229 | N.Y. App. Div. | 1917
There is no dispute that John Henry Borgsted received injuries while employed by the Shults Bread Company, in a hazardous occupation, on the 22d day of March, 1916, but the question whether such injuries resulted in the permanent disability of the injured employee is presented. The State Industrial Commission has found as conclusions of fact that “ on said date while John Henry Borgsted was working for his employer and was driving his employer’s wagon at 169th street, * * * he slipped in getting off of his wagon and fell, and thereby received a spiral fracture of the right tibia just above the ankle. Previous to this accident, Borgsted was afflicted with the disease of syphilis. * * * The injury to the ankle caused a lowering in Borgsted’s resisting power and made him less able to resist the progress of the disease of syphilis which manifested itself one week after he returned home by a dimness of vision which has now become
The insurance carrier appeals from this award and urges that the finding of the Commission, that the claimant’s previous diseased condition has become aggravated because of the accident, is without basis of fact, and is not supported by any evidence, and we are referred to much detailed expert testimony upon this proposition, which it does not seem tons important to consider, for the reason that upon the Commission’s own-findings of fact the conclusion of law that this accident produced a permanent total disability does not follow. The purpose of the Workmen’s Compensation Law was not to abrogate the divine law that the “ sins of the father shall be visited upon the sons, even to the third and fourth generation,” but to impose upon certain designated industries, or the product of such industries, the burdens of the accidents arising out of such employments. (Ives v. South Buffalo R. Co., 201 N. Y. 271, 286.) The finding that the accident occurred, and that it resulted in a spiral fracture of the right tibia just above the ankle, establishes
The statute (Workmen’s Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 3, subd. 7) defines “ injury ” and “ personal injury ” to “ mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.” To constitute an injury resulting in total disability by reason of the loss of eyesight it must be shown that the eyesight was destroyed by the injury, or that the injury produced “ such disease or infection ” as resulted in the loss of the eyesight; the injury must be “an accidental injury,” and “such disease or infection as may naturally and unavoidably result therefrom.” An injury which does not naturally and unavoidably produce disease or infection cannot be compensated under the law, except to the extent of the actual injuries. The insurance carrier is hable for the compensation due for the breaking of the tibia, and it may be that it would be liable to compensate the claimant for the disability, or partial disability, arising out of such injury during its continuance, though this should be prolonged beyond the ordinary period by reason of the pre-existing syphilitic condition of the claimant, but where, as here, it is found that the claimant was the victim of a disease, which all the witnesses' agree was the cause of the loss of eyesight, and the most that is suggested is that the disease may have been aggravated by the accident, the case is not within the statute, in so far as it relates to the loss of eyesight. The disease, which the Commission finds existed prior to the accident, did not “ naturally and unavoidably result ” from the accident; it was there with
We are clearly of the opinion that the facts found by the Commission, many of which were not in issue, do not give rise to the conclusion of law that this case, as here presented, comes within the statute. That the claimant may be entitled to further compensation upon his claim for the spiral fracture of the right tibia, which was the full measure of his demand in the first instance, may be conceded, and this though the injury may have been prolonged in its results because of the degeneracy due to syphilis; but that the State Industrial Commission has no jurisdiction to award compensation for a permanent total disability due to loss of eyesight, where such loss cannot by any possibility be traced to the accident, and where no claim for such loss of eyesight was made, is certain.
The award should be reversed, and the matter should be
All concurred, except Kellogg, P. J., and Cochrane, J., dissenting.
Award reversed and matter remitted to the State Industrial Commission for such further action as the Commission may be advised consistent with the opinion herein.