Application for Review tifying, "Question: At the time of your discharge on November 8th, was there to your knowledge any scarring on the cornea of the eye? Answer: No, there was not. Question: Was there any evidence of perforation of the cornea at any time between October 19th and November 8th? Answer: No, there was no evidence of such condition in the eye. Question: November 8th, when you discharged him, as far as the eye itself was concerned, there was no pathology present in the eye? Answer: No." 19 20 The minutes of this date further show that on February 27th, which was about 3 1/2 months after the date of discharge, the claimant returned to the doctor and the doctor on that date found that the eye had developed a serious perforation, together with a beginning cataract formation. He further stated that no part of this condition was present on November 8th. Further, that if the pathology that was present on February 27th was apparent at any time between the dates of October 19th and November 8th, he testified he would have referred the claimant immediately to an eye specialist. The 21 record further shows that the edematous condition was entirely gone on November 8th; that the eye was no longer closed and that he examined the eye and it was entirely clear and normal. The Referee based his conclusion as to causal relation on a memorandum in your folder, dated sometime in July, by Dr. Davidson, whom we contend attempted to act as judge and jury, as well as medical examiner. In other words, we contend that his opinion is entirely based on speculation and assumption. In other words, he Application for Review has assumed facts and pathology that were not present during the course of the treatment by Dr. Janes and he attempts to further question the qualifications of Dr. Janes. We believe that Dr. Davidson has overstepped his position as medical examiner and that he is not a true judge of the facts, this position being delegated by the law to the Referee. We, therefore, believe on all the facts outlined above, and the record itself, that the Board will entirely agree with the carrier's viewpoint and we are certain that the award upon review will be set aside. Therefore, the only award that can be made in this matter is one for disability, the period of which is indicated on the carrier's C-8, dated December 12, 1935, and filed with your Department. Awaiting your early reply as to review, we are, Very truly yours, ROYAL INDEMNITY COMPANY, 24 WFQ:ds BY WILLIAM F. QUIGLEY. Case No. 35410501 Christopher Hanify vs. West End Ave. & 75th St. Corp. 98717765 Christopher Hanify, 230 W. 99th St., N. Y. C. West End Ave. & 75th St. Corp., 162 W. 72nd St., N. Y. C. Royal Indemnity Co., 57 Gold St., N. Y. C. Harold Flatto, Esq., 261 Broadway, N. Y. C. 25 26 27 28 29 30 Denial on Application for Review The above case was presented to the Industrial Board on January 5, 1937, for consideration, at which time decision was reserved. After a careful review of the papers on file, the action of the Board under date of January 7, 1937, was to find that the records supports the findings of the Referee. The award dated September 11, 1936, is hereby modified to read: Award to claimant herein 160 weeks compensation for 100% loss of use of the right eye, totalling $2,707.20. To be paid now 63 weeks compensation covering the period from 10/19/35 to 1/2/37 @ $16.92 per week, totalling $1,065.96, less amount previously paid, and thereafter the sum of $33.84 every two weeks for 97 weeks. A fee of $200.00 is approved to claimant's attorney, Harold Flatto, of 261 Broadway, New York City, for which a separate check is to be sent and the case is closed. Very truly yours, ELMER F. ANDREWS. Take notice that the above award of decision was duly filed in the office of the department on the 8th day of January, 1937. Dated, 1/8/37. Dict. by GEORGE M. CUSTER, GMC:ALL This claim came on for hearing before the State Industrial Board of the State of New York on January 7, 1936; February 24, 1936; March 13, 1936; March 30, 1936; April 21, 1936; May 15, 1936; June 16, 1936; July 7, 1936; September 8, 1936 and January 5, 1937. Appearances: Ireland, Cohen & Hendrickson, Esqs., Attorneys for Appellants, Office & P. O. Address, 150 William Street, New York, N. Y. 33 |