App. Div.] Third Department, January, 1921. Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of WILLIAM FORBES, Respondent, for Compensation under the Workmen's Compensation Law, V. THE EVENING MAIL, Employer, and AMERICAN MUTUAL INSURANCE COMPANY, Insurance LIABILITY Third Department, January 5, 1921. Carrier, 'Workmen's Compensation Law - award based on loss of first phalange of finger cannot be sustained where one-half or more of first phalange has not been removed. An award based on the loss of the first phalange of the middle and the ring fingers must be reversed where less than one-fourth of each of the injured phalanges has been amputated, for the major portion, or more than half, of the phalange must be removed before the same is substantially "lost," and a "loss of the first phalange " is made out within the meaning of the statute. APPEAL by the defendants, The Evening Mail and another, from an award, order and decision of the State Industrial Commission made on the 12th day of April, 1920. Clarence B. Tippett, for the appellants. Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondents. H. T. KELLOGG, J.: It is provided in subdivision 3 of section 15 of the Workmen's Compensation Law: "The loss of the first phalange of the thumb or finger shall be considered to be equal to the loss of one-half of such thumb or finger." A phalanx or phalange is defined by Webster to be " In vertebrates, one of the digital bones of the hand or foot beyond the metacarpus or metatarsus." It is defined by the Century Dictionary as follows: "One of the bones of the fingers or toes; a digital internode, succeeding the metacarpal or metatarsal bones, collectively constituting the skeleton of the third and distal segment of the hand or foot." In accurate speech, therefore, the loss of a phalange of a finger is the loss of a finger bone, and the loss Third Department, January, 1921. [Vol. 194. of the flesh of a finger forms no part thereof. It was held in Mockler v. Hawkes (173 App. Div. 333) that "the amputation of the tip of the bone of the second finger" did not constitute a loss of the first phalange. It was held in Geiger v. Gotham Can Co. (177 App. Div. 29) that "a traumatic amputation of one-eighth of an inch of the bone" of the finger did not constitute a loss of the first phalange. It is true that in Matter of Petrie (215 N. Y. 335) an award made for the loss of onehalf a finger was sustained on the theory of a loss of the first phalange where only one-third of the bone was found to be amputated. That case must be interpreted, however, in the light of a further finding of the Commission that the injury consisted of " third finger cut off near the first joint or near root of nail." The Petrie case furnishes us with the controlling rule "That the provisions of the statute providing compensation for the loss of a certain portion of the finger become operative and applicable when it appears that substantially all of the portion of the finger so designated has been lost." In our case the loss is stated in the employer's first report of injury to be a loss of "pulp of middle and ring fingers." It is stated in the employee's claim for compensation to be "bone exposed on middle and ring fingers right hand." It is stated in the attending physician's report to be " amputation of pulp right middle and ring fingers with part of distal phalanx in each finger chipped off." The finger loss is not otherwise stated in the testimony, and is not further proven except by the X-ray photographs which appear in the record. A comparison of the finger phalanges which are sound with those which have been chipped, as shown by these pictures, indicates that less than one-fourth of each of the injured phalanges has been amputated. It is evident that "substantially all" of a phalange cannot be removed, and "substantially all" of the same phalange be left after the removal. Necessarily, therefore, under the Petrie case the major portion or more than half of a phalange must be removed before the same is "substantially ""lost," and a "loss of the first phalange" within the meaning of the statute is made out. Assuming, as nice wording would compel us to assume, that a phalange is a finger bone, no such loss has been proven in this case. Assuming, as it seems to have been assumed in Thompson v. App. Div.] Third Department, January, 1921. Sherwood Shoe Co. (178 App. Div. 319) and Tetro v. Superior Printing & Box Co. (185 id. 73) that the first phalange of a finger is all that part of a finger, whether flesh or bone, which extends beyond the first joint, then equally has the claimant failed here to show a "loss of the first phalange." This is true because it nowhere appears from the reports, the testimony or the pictures that one-half or more of flesh and bone constituting the first phalange has been removed. The award was, therefore, erroneous. The award should be reversed and the claim remitted to the Commission. All concur. Award reversed and matter remitted to the Commission. Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of EMMA JACK, Respondent, for Compensation under the Workmen's Compensation Law, for the Death of Her Husband, WILLIAM H. JACK, v. MORROW MANUFACTURING COMPANY, Employer, and MARYLAND CASUALTY COMPANY, Insurer, Appellants. Third Department, January 5, 1921. -- Workmen's Compensation Law evidence use by Industrial Commission of opinion of doctor submitted after hearing was closed is improper award based on hearsay declarations alone cannot be sustained. An award should be reversed where the Industrial Commission uses a statement made by a physician, which was submitted after the hearing was closed, so that no opportunity for cross-examination of the declarant was offered. Where the deceased, as he was leaving his employer's plant at the noon hour, was struck and injured by a motorcycle ridden by a fellow-employee, and the claim that the accident occurred on the premises of the employer finds support only in the declarations of the deceased, the award must be reversed, since a fact, essential to be proven in support of the claim, was shown by hearsay declarations alone. Third Department, January, 1921. [Vol. 194. APPEAL by the defendants, Morrow Manufacturing Company and another, from a decision and award of the State Industrial Commission made on the 1st day of December, 1919. Mandeville, Personius & Newman [E. W. Personius of counsel], for the appellants. Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondents. H. T. KELLOGG, J.: The claimant's husband came home from his work at the noon hour on November 7, 1916, with a slight swelling or bruise on the calf of his right leg. He told his wife that when he was leaving the plant of his employer he was struck in the leg by a passing motor cycle ridden by a fellow-employee. He remained at home that afternoon, but, returning to the plant on the following day, continued to work until November thirteenth, when his condition became such that Dr. Green was called to attend. This physician found his leg to be swollen, sensitive and discolored, and noted a shortness of breath due to a congestion of the lungs. He attributed the congestion to insufficient circulation due to a disordered heart. The liver and kidneys of the claimant's husband became involved and his condition rapidly became worse until December 3, 1916, when death resulted. Dr. Green gave as the cause of death" cardiac insufficiency." At hearings held by the Industrial Commission to try this claim, filed by the widow for her husband's death, it clearly appeared that the deceased had been suffering from a disorder of the heart for a period long antedating the alleged accident which injured his leg. Dr. Green testified that the leg injury aggravated the heart disorder and precipitated death. Other physicians testified positively that the injury was in nowise a contributing cause of death. After the hearings were closed Dr. Lewy, apparently at the instance of the Commission, submitted a written opinion in which he stated: "I must consider the injury a contributing factor only in decompensating a previously compensating diseased heart." The Industrial Commission, in making an award, evidently relied greatly Third Department, January, 1921. App. Div.] upon this opinion, for it found: "The injuries that he received on November 7, 1916, were the producing cause of the cardiac decompensation and was the proximate cause of his death." The use by the Commission of the statement made by Dr. Lewy, which was submitted after the hearings were closed, so that no opportunity for cross-examination of the declarant was offered, would of itself compel a reversal. (Nestor v. Pabst Brewing Co., 191 App. Div. 312.) However, a more serious defect in the case of claimant appears. The so-called accidental injury was not proven by any eye witness. The declarations of the deceased in reference thereto were in part corroborated by the employer's first report of injury, but to the extent only of the following statement: "Describe in full how the accident occurred Ran into by motorcycle ridden by fellow employee as they were going away from plant at noon." It was necessary for the claimant to prove either that the accident to her husband occurred on the premises of his employer, or away from the premises in the course of his employment. (Workmen's Compensation Law, § 3, subd. 4.) The deceased was clearly not in the course of his employment when going to his midday meal after leaving the employer's plant or premises. (Matter of McInerney v. Buffalo & S. R. R. Corp., 225 N. Y. 130.) That the accident occurred upon the employer's premises finds support only in the declarations made by the deceased. On the other hand, the employer in its first report made the following statement: “Did accident happen on the premises? On street outside of factory." Since a fact, essential to be proven in order to support this claim, has been shown by hearsay declarations alone, the claim without further proof must necessarily fail. (Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Matter of Belcher v. Carthage Machine Co., 224 id. 326; Matter of Hansen v. Turner Construction Co., Id. 331.) The award is reversed and the claim remitted to the Commission. All concur. Award reversed and matter remitted to the Commission. |