Claim of McLaughlin v. Curtis-Quillen Co.

Davis, J. The claimant was injured August 31, 1926, being struck in the forehead by a flying piece of metal. It cut a gash in his head which bled freely and, it is said, caused a slight transverse fracture, of which no sign or indentation now remains. He was treated at a hospital and had pain, headaches and tremor of the hands. There is no question that the claimant was temporarily disabled. The carrier paid compensation for four weeks and then discontinued the payments. The attending physician reported on October seventh that the claimant was not in need of further medical or surgical attention and was able to resume work. The claimant [209] did resume work subsequently but not at his regular occupation as a fireman. He took a watchman’s job at lower wages. His claim is that he has dizzy spells and headaches and gets nervous; and that he is unable to work at his usual vocation. He attributes his present condition to the former injury. In the award it is found that “ because of the said accidental injuries sustained by the claimant herein and the consequences naturally and unavoidably flowing therefrom, said William J. McLaughlin was totally disabled from September 1, 1926, to September 8, 1926, and partially disabled from October 6, 1926, to March 9, 1927, on which latter date he was still partially disabled.” An award for reduced earnings has been made for the period from October 6, 1926, to March 9, 1927, and the claim is continued for further hearing. The appellants challenge the award on the ground that no causal connection was shown between the injury and the reduced earning power claimed and found. The claimant was sixty-two years of age at the time of the injury. There was some testimony indicating that the ailments from which it is claimed he was suffering might have been due to drinking rather than to the accident. The injury itself was not sufficiently serious so that the consequences claimed would inevitably follow. It then became important to establish the relation between the injury and the physical ailments asserted by claimant. His symptoms were practically all subjective and bis claims concerning them were somewhat vague and indefinite. It was a question which required the aid of medical skill in its solution. The only evidence connecting the claimant’s disability with the injury which we are able to find by a careful search of the record, is that of Dr. Lewy who first examined the claimant on March 8, 1927. He recites the complaints of claimant but the physical examination disclosed nothing objective except “ a distinct tremor of the upper extremities.” He then says: “ Considering the age of the claimant, an injury to his head as described can be a contributing factor to the headache and vertigo which he complains of.” We think this falls short of a definite opinion on the vital issue of causation. It is essentially speculative and conjectural. The question to be determined was not whether one of several possible causes could contribute to an existing physical condition, but what actually in all probability did cause it. The opinion of the medical witness was admissible to aid the triers of the fact if he could give it with reasonable certainty. The modern rule relative to opinion evidence is liberal, but in doubtful cases there must be more than possibility of result if [210] weight and credit are to be given the opinion of a medical expert. (Gehl v. Bachmann-Bechtel Brewing Co., 156 App. Div. 51,54; Carolan v. Hoe & Co., 214 id. 356, 358.) While no special form of words is required in framing the question, the answer must disclose that in the mind of the witness there exists a reasonable certainty that a given condition or result has occurred or will probably occur from the original injury or ailment. (Turner v. City of Newburgh, 109 N. Y. 301, 308, 309; Griswold v. New York Central, etc., R. R. Co., 115 id. 61, 64; Knoll v. Third Ave. R. R. Co., 46 App. Div. 527, 529; affd., 168 N. Y. 592; Kidney v. Gray, 154 App. Div. 193; Pincus v. Schlechter, 167 id. 361.) If there had been other evidence pointing strongly toward the claimed grounds of causation, we could overlook the deficiency in the evidence quoted. (Workmen’s Compensation Law, § 118; Walden v. City of Jamestown, 79 App. Div. 433; affd., 178 N. Y. 213; Christastie v. Elmira W., L. & R. R. Co., 202 App. Div. 270.) But here the probative value of the testimony is so slight that it cannot be regarded as possessing sufficient weight to establish the necessary relation between the injury and the disability asserted. (Matter of Nazzaro v. Angelilli, 217 App. Div. 415, 417; Matter of Hallock, 214 id. 323, 327.) The award should be reversed and the matter remitted to the State Industrial Board for further proof, with costs against the State Industrial Board to abide the event. Whitmyer and Hill, JJ., concur; Van Kirk, P. J., dissents, with a memorandum, in which Hinman J., concurs.