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• Title: Matter Claim Delvina Barrow v. Loon Lake Hotel
• Author : Supreme Court of New York
• Release Date : January 14, 1957
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 67 KB

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[3 A.D.2d 783 Page 783] Appeals by employer and its insurance carrier (1) from a decision and award of the Workmen's Compensation Board for disability
and death benefits and (2) from the board's denial of an application for reconsideration and for the opportunity to submit
further proof. The award is predicated very largely, if not completely, upon proof that a heart attack sustained by decedent
on June 25, 1952 was caused by work which decedent performed that day in holding a heavy electrical transformer with a block
and tackle device while a co-employee secured it to a pole. There was strong proof, to some extent corroborated by documentary
evidence, that the work of installing the transformer was actually performed about a month earlier, between May 24 and May
28. A majority of the board panel chose to accept the testimony of a fellow employee and the hearsay testimony that the event
occurred on June 25, 1952. Shortly after the board's decision was filed and this appeal taken therefrom, appellants applied
to the board to reopen to receive testimony of a former employee, one Polikoff, whom appellants had previously been unable
to locate. It was said that Polikoff assisted in the installation of the transformer prior to the termination of his employment
on May 29 and would so testify. Appellants proposed to submit also a moving picture film said to show decedent and Polikoff
together on the premises. In support of their application, appellants submitted an affidavit by Polikoff and proof of the
efforts made to locate him. The question as to the date of the installation of the transformer was crucial, in the state of
the medical proof when the evidence closed, as two of the three board members participating in the subsequent review and decision
recognized. One of the two members concurring in the the decision indicated on the hearing that he considered the finding
of the June date as controlling on the issue of causation. The dissenting member found that the work was performed on May
28 and voted to refer the case to an impartial cardiologist for an opinion as to causation on the basis of overexertion on
that date. So clear a recognition of the vital nature of the time factor, as well as due concern for the integrity of its
own decision, should have impelled the exercise of the board's discretion to direct a hearing upon which the proffered evidence
would be received. Were it found credible, then the decision and award previously made would have been based largely on the
perjured testimony of at least one witness. That testimony was also necessary, in large part, to the corroboration [3 A.D.2d
783 Page 784]

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