195 A.D. 670 | N.Y. App. Div. | 1921
There is. no dispute that the claimant was injured in the course of his employment in a manner to entitle him to compensation. The accident occurred on the 14th day of June, 1919. The injury is described as a “ contused and lacerated right wrist,” and the only question presented upon this appeal is whether the Commission may make an award for an injury in excess of the proportionate loss fixed by the testimony of the physicians, upon the personal examination by one of the commissioners. The greatest possible loss of use of the hand, due to the injury to the wrist, was placed at thirty-three and one-third per centum by the physicians, ranging from that down to twenty-five per cent. There is no testimony before the Commission from which any greater loss of use may be found. Deputy Commissioner Boyle has, however, made a personal examination of the claimant’s hand and, ignoring the testimony of the physicians, has fixed it at forty per centum. None of the facts on which this determination is made rests upon sworn testimony; it is all based upon the statement of this deputy commissioner. He says: “ The claimant in this case has been before me and examined by me seven or eight times since July 23, 1919, and I have found on all examinations a marked loss of gripping power in the right hand, which has not in my opinion improved although there has been some improvement in the condition of coldness and perspiration which has been present in the hand. I find that this loss of power of the hand is equivalent to 40 per cent of the useful function of the hand and I make an award for 97.6 weeks at $20 per week.”
Various hearings were had in reference to this case, and counsel insisted that the award be confined to the limits fixed by the testimony, but the Commission has ratified the award, and we are asked to determine upon this appeal whether the Commission may fix the extent of injuries without regard to the evidence in the record. In condemnation proceedings,
There is clearly no evidence in this record of a sound, competent and recognizedly probative character to sustain the finding that the claimant’s hand was injured to the extent of forty per cent of its capacity; there is merely the conclusion of a deputy commissioner, unsustained by any evidence in the record. He does not lay before this court the groundwork of fact on which his conclusion is based; he was not sworn, was not subjected to examination or cross-examination. So far as the record goes it appears that his conclusion was reached after the hearing was closed, and without any one knowing that he contemplated making any personal examination of the claimant.
The award should be reversed and the case returned to the Commission for a determination upon the evidence which appears in the record.
All concur, H. T. Kellogg, J., in result on the ground that the loss of use presented a question which those having expert
Award reversed and matter remitted to the Commission for further action.
Since amd. by Laws of 1920. chaps. 532, 533.— [Rep.