State Indus. Bd. v. Hegeman Harris Co. (In re Magna)

• Decision Date: 05 January 1932
• Citation: 179 N.E. 266,258 N.Y. 82
• Parties: In re MAGNA. STATE INDUSTRIAL BOARD v. HEGEMAN HARRIS CO. et al.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 82

179 N.E. 266

In re MAGNA.STATE INDUSTRIAL BOARD

v.HEGEMAN HARRIS CO. et al.

Court of Appeals of New York.

Jan. 5, 1932.

Proceeding under the Workmen's Compensation Law by Vincent Magna, claimant, for injuries, opposed by the Hegeman Harris Company, employer, and the Travelers' Insurance Company, insurance carrier. From an order of the Appellate Division (233 App. Div. 787, 250 N. Y. S. 884), affirming by divided court an award of the State Industrial Board in favor of the claimant, the employer and insurance carrier appeal.

Reversed, and rehearing granted.

Appeal from Supreme Court, Appellate Division, Third department.

Wm. B. Davis and E. C. Sherwood, both of New York City, for appellants.

John J. Bennett, Jr., Atty. Gen. (Joseph A. McLaughlin, of New York City, of counsel), for respondent.

CARDOZO, C. J.

The question in this case is solely as to the period of time during which disability continued.

A physician called by the carrier testified that on May 3, 1928, the claimant had fully recovered, and was then able to go to work.

In opposition to this the claimant produced a verified report by another physician that he had been examined on July 30, 1928, and would not be able to resume work till August 15.

The carrier demanded an opportunity to cross-examine this physician, the signer of the report. It served a subpoena, which the physician ignored, and upon proof of his default, served a second subpoena, which was ignored like the first.

Thereupon the board declared the proceeding at an end, and made an award for the claimant fixing the term of disability as it had been stated in the report, and disregarding the testimony of the carrier's physician to the contrary.

Workmen's Compensation Law (Consol. Laws, c. 67) § 21, as amended by Laws 1923, c. 568, provides as follows:

‘Presumptions. In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary

‘1. That the claim comes within the provision of this chapter;

‘2. That sufficient notice thereof was given;

‘3. That the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another;

‘4. That the injury did not result solely from the intoxication of the injured employee while on duty;

‘5. That the contents of verified medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein.'

By the opening words of the section, the presumption thereby created as to the contents of a medical report exists only ‘in the absence of substantial evidence to the contrary.’ Here there was such evidence. The presumption, therefore, failed, and the burden of establishing the extent of the disability fell back upon the claimant.

The purpose of the statute is easily perceived. Not infrequently the carrier does not wish to contest...