Claim of Goldstein v. Centre Iron Works — 167 A.D. 526

Majority

p. 526

Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Morris Goldstein, Claimant, Respondent, for Compensation under the Workmen’s Compensation Law, v. Centre Iron Works, Employer, and Ætna Life Insurance Company, Insurer, Appellants.

Third Department,

May 5, 1915.

Headnote

Master and servant—Workmen’s Compensation Law — decision of question of fact by Commissioners — review on appeal.

Where in a proceeding under the State Workmen’s Compensation Law the claimant appeared personally before the Commissioners at a second hearing and testified that his eyesight has been impaired by the accident on which his claim is founded, the only evidence to the contrary being the expert testimony of two physicians given on the first hearing, and the Commissioners make an award founded upon then personal observation of the witness and upon his testimony, there is a decision of a question of fact which will not be reviewed by the Appellate Division.

Appeal by the Centre Iron Works and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 2d day of November, 1914.

James B. Henney [Henry Ginnane of counsel], for the appellant insurance company.

Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], representing the Commission.

Jeremiah F. Connor, for the Commission.

The Commission finds as a matter of fact that the claimant was disabled for the time allowed. The only question raised by appellants is that the evidence does not sustain that finding.

The claimant was injured July 8, 1914, and the Commission, October nineteenth, awarded him compensation for three weeks at seven dollars and sixty-nine cents a week, the total allowance being twenty-three dollars and seven cents, the employment falling under group 21 of section 2 of the Workmen’s

p. 527

Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). On November 2,1914, the matter again came before the Commission and an award was made of eleven additional weeks at the same rate per week from August 12, 1914, to October 27, 1914.

Upon the first hearing the evidence of the physicians indicated that he was not injured as much as he thought he was. After the'award he returned to the foundry and, entering the dark room, as he claims, was unable to see; there seemed a smoke over his eye to such an extent that he could not work. He appeared personally before the Commission. The appellants claim that the evidence of the physicians upon the first hearing showed clearly that the injury was only temporary, and that his story upon the second hearing was not true. That was a question of fact for the Commission to determine. Section 20 of the act declares that the decision of the Commission shall be final upon all questions of fact. The appellants now contend that there was no evidence sustaining the award, and that, therefore, there was an error of law. But the claimant was before the Commission, was examined personally and gave his testimony. It was justified in the award if it believed him. The evidence against him was that of the two experts upon the former hearing. The Commission considered that the claimant was not unworthy of belief, and that he, better than any one, knew his condition. It does not appear that the appellants offered any evidence which was excluded. They were represented by counsel, and if they desired to put in further evidence should have asked or demanded that right. The decision stands as one of fact. We are precluded from considering it further. If, however, we were at liberty to review the question of fact we could not say that the decision is against the evidence. The award is, therefore, affirmed.

All concurred.

Award affirmed.