223 A.D. 208 | N.Y. App. Div. | 1928
Lead Opinion
The claimant was injured August 31, 1926, being struck in the forehead by a flying piece of metal. It cut a gash in his head which bled freely and, it is said, caused a slight transverse fracture, of which no sign or indentation now remains. He was treated at a hospital and had pain, headaches and tremor of the hands.
There is no question that the claimant was temporarily disabled. The carrier paid compensation for four weeks and then discontinued the payments. The attending physician reported on October seventh that the claimant was not in need of further medical or surgical attention and was able to resume work. The claimant
The appellants challenge the award on the ground that no causal connection was shown between the injury and the reduced earning power claimed and found.
The claimant was sixty-two years of age at the time of the injury. There was some testimony indicating that the ailments from which it is claimed he was suffering might have been due to drinking rather than to the accident. The injury itself was not sufficiently serious so that the consequences claimed would inevitably follow. It then became important to establish the relation between the injury and the physical ailments asserted by claimant. His symptoms were practically all subjective and bis claims concerning them were somewhat vague and indefinite. It was a question which required the aid of medical skill in its solution.
The only evidence connecting the claimant’s disability with the injury which we are able to find by a careful search of the record, is that of Dr. Lewy who first examined the claimant on March 8, 1927. He recites the complaints of claimant but the physical examination disclosed nothing objective except “ a distinct tremor of the upper extremities.” He then says: “ Considering the age of the claimant, an injury to his head as described can be a contributing factor to the headache and vertigo which he complains of.”
We think this falls short of a definite opinion on the vital issue of causation. It is essentially speculative and conjectural. The question to be determined was not whether one of several possible causes could contribute to an existing physical condition, but what actually in all probability did cause it. The opinion of the medical witness was admissible to aid the triers of the fact if he could give it with reasonable certainty.
The modern rule relative to opinion evidence is liberal, but in doubtful cases there must be more than possibility of result if
If there had been other evidence pointing strongly toward the claimed grounds of causation, we could overlook the deficiency in the evidence quoted. (Workmen’s Compensation Law, § 118; Walden v. City of Jamestown, 79 App. Div. 433; affd., 178 N. Y. 213; Christastie v. Elmira W., L. & R. R. Co., 202 App. Div. 270.) But here the probative value of the testimony is so slight that it cannot be regarded as possessing sufficient weight to establish the necessary relation between the injury and the disability asserted. (Matter of Nazzaro v. Angelilli, 217 App. Div. 415, 417; Matter of Hallock, 214 id. 323, 327.)
The award should be reversed and the matter remitted to the State Industrial Board for further proof, with costs against the State Industrial Board to abide the event.
Whitmyer and Hill, JJ., concur; Van Kirk, P. J., dissents, with a memorandum, in which Hinman J., concurs.
Dissenting Opinion
(dissenting). The objections are that causal relation is not established, and the finding as to his reduced earning capacity is not supported by evidence. On August 31, 1926, claimant received a violent blow on the forehead, was knocked backward striking his head against a box car and suffered a transverse fracture of the frontal bones. Dr. Ostrurn’s verified report, dated September fourth, shows this; also that the injury caused permanent defects, namely, headache and dizziness. There is no history or evidence of a pre-existing injury ailment, or disease. To the question: “ On what date able to do any work and nature of work,” Dr. Ostrum answered, “ Remote possibility.” He did not see the claimant later than October 6, 1926. The claimant testified that, to the end of the period of the award, he has suffered from nervous spells, headaches and dizziness and that these kept him from work. He denies drunkenness. In December, 1926, he worked for a few days, and in March, 1927, he worked seven nights a week at three dollars and sixty cents per night, twenty-five dollars and twenty
Hinman, J., concurs.
Award reversed and claim remitted, with costs against the State Industrial Board to abide the event.