Third Department, February, 1921. [Vol. 195. No phy repeatedly urged to go to work; he will not do so. sician but the one apparently interested in getting his own compensation can find any reason why this man does not go to work; that he is a malingerer seems clear beyond peradventure. The burden of proving that his present incapacity to work is on him and he has not met that burden. (Chimora v. International Ice Cream Co., 193 App. Div. 538.) The weight of the evidence and all evidence worthy of the name is against claimant's contention. The award should be reversed and claim dismissed. All concur. Award reversed and claim dismissed. Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of DELIA NESTOR, Respondent, for Compensation under the Workmen's Compensation Law, on Behalf of Herself and Infant Son, on Account of the Death of Her Husband, ANDREW NESTOR, v. PABST BREWING COMPANY, Employer, and STANDARD ACCIDENT INSURANCE COMPANY, Insurance Carrier, Appellants. Third Department, February 28, 1921. Workmen's Compensation Law death from heart disease follow ing injury evidence not establishing causal relation between accident and heart disease. Where on an appeal from an award for death from heart disease following an injury, the case is sent back for a further hearing on the ground that the presumption arising from the death certificate stating that death was caused by heart disease was overcome by positive evidence that there was no causal relation between the accident and the immediate cause of death, an award is not justified on a rehearing where the only additional evidence that the injury contributed to the death was the opinion of an expert based on the facts disclosed by the record, eliminating the death certificate. JOHN M. KELLOGG, P. J., dissents. App. Div.] Third Department, February, 1921. APPEAL by the defendants, Pabst Brewing Company and another, from a decision and award of the State Industrial Commission, made on or about the 7th day of April, 1920. Neile F. Towner, for the appellants. Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, and Bernard L. Shientag of counsel], for the respondents. KILEY, J.: Claimant's intestate worked for the employer above named for the five years previous to June 1, 1918. He was a stableman and night watchman, lived over the stables with his family, consisting of these claimants. On said first day of June he was leading three horses down the runway in said stable, in New York city, and one of them became unmanageable. Nestor was thrown down and trampled upon by the horses and severely injured. He had to immediately quit work and was sent to a hospital, his dislocated shoulder set, and other numerous bruises and contusions examined. He returned and the company doctor gave him some attention, not much, and ceased attendance July 5, 1918, discharging him as cured. He died July 21, 1918, of heart disease. The employer and employee agreed on compensation, which was approved by the Commission, and paid until the day before he died. On subsequent hearing at which only the attending physician was sworn, and whose evidence was to the effect that there was no causal relation between the accident and the heart disease from which he died, I mean only medical testimony, other evidence was given, viz., death certificate with a disclaimer, and lay witnesses testified, an award was made in favor of the claimants. On appeal this court reversed the award with but one dissent. (191 App. Div. 312.) We there held "there is absolutely no evidence that the deceased had a heart lesion at the time of the accident. There is no evidence that the cause of death was heart disease unless it be the death certificate." The doctor testified that on two examinations no heart difficulty was found, and we, therefore, held that any presumption arising from the introduction of the death certificate in evidence dis Third Department, February, 1921. [Vol. 195. appeared "in the presence of substantial evidence to the contrary. (Rose v. Balfe, 223 N. Y. 486; Potts v. Pardee, 220 id. 431; Fallon v. Swackhamer, 226 id. 447.) " The case went back for a further hearing. The additional evidence introduced was that of an expert who was asked to give an opinion upon the main question, causal relation, basing his opinion upon the facts disclosed by the record, eliminating the death certificate. His opinion was to the effect that the injury was a contributing cause. No new evidential fact was offered, and I do not think the case differs or is strengthened by the additions made since the last appeal. The Commission affirmed its previous award. Mr. Shientag's brief is an able argument for sustaining the award, but it cannot supply the lack of evidence. I think we are bound by our previous decision in this case and that the award should be reversed and the claim dismissed. All concur, except JOHN M. KELLOGG, P. J., dissenting. Award reversed and claim dismissed. Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of Mrs. MARY MCGOEY, Respondent, for Compensation under the Workmen's Compensation Law, on Account of the Death of Her Husband, BRYAN McGOEY, Deceased, v. TURIN GARAGE AND SUPPLY COMPANY, Employer, and ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, LTD., Insurance Carrier, Appellants. Third Department, February 28, 1921. Workmen's Compensation Law-death from pulmonary tuberculosis following injury - evidence establishing causal relation between injury and disease when Appellate Division will not interfere with finding of State Industrial Commission presumptions under section 21. Claimant's testator, a car washer, at the time he was injured by being crushed between two automobiles, apparently was in good health, but shortly thereafter he developed pulmonary tuberculosis from which he App. Div.] Third Department, February, 1921. died within a year from the date of the injury. Held, that the evidence is of such probative force that the finding of the State Industrial Commission that there was a causal relation between the injury and the disease should not be disturbed. Under the evidence section 21 of the Workmen's Compensation Law relating to presumptions was applicable. APPEAL by the defendants, Turin Garage and Supply Company and another, from an award and order of the State Industrial Commission, entered in the New York office of said Commission on the 30th day of April, 1920. Philip J. O'Brien [John Vernou Bouvier, Jr., of counsel], for the appellants. Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, Bernard L. Shientag and Jeremiah F. Connor of counsel], for the respondents. KILEY, J.: Claimant's intestate worked for his employer, appellant herein, as a car washer. On May 24, 1919, while so engaged he met with an accident by being crushed between two cars in the garage in which he was working. The record shows that the injury was severe enough so that his foreman sent him home as unfit for service on account of the injuries he received. A doctor was called and he was kept in bed for about a week, and idle until June seventh or eleventh, when he went back to work. He swears he was not feeling well any of the time after the accident. He continued to work for about two weeks, when he could no longer perform his duties, and we next, and comparatively soon, find him in the hospital suffering from tuberculosis; he lingered and grew worse for eight or nine months after the date of the accident and finally died February 1, 1920. The finding of the Commission is to the effect that the employee had dormant pulmonary tuberculosis at the time of the accident, and that the injuries aggravated and activated the disease, so that from dormant it became progressive and by progression reached its advanced and final stage, resulting in and causing death. The appellant insurance carrier argues that there is no evidence of causal relation between the injury and the disease. The Commission has determined, as a matter of fact, that there was such relation, and if there is evidence of Third Department, February, 1921. [Vol. 195. probative force, even meager though it be, we cannot disturb the finding. (Workmen's Compensation Law, § 20, as amd. by Laws of 1919, chap. 629.) To determine whether or not there was "a residuum of legal evidence" to sustain the finding of the Commission, resort must be had to what the evidence discloses first as to facts and then as to probabilities. That the Commission had a healthy subject, forty-one years of age, immediately prior to May 24, 1919, the date of accident, appears beyond question from the evidence. That he was injured in the manner he claimed is not contradicted, except by inference, so that the first question is the extent of the injury. The evidence is not so clear as to the extent of the initial injury as might be desired. Just what occasioned the injury we have only in outline; however, practical common sense with some knowledge of cars, their conformation and construction, will fill in the outlines. The claimant's intestate says he was crushed between two cars; that the contact with his body was at the groin region, the abdomen, and chest or ribs. One of the cars had two tires on rims fastened to the running board near the forward door or about where the door would open if the tires were not there; the injured man was caught first at the mud guard in front, forced toward the rear by the other car which must have struck him diagonally; his body followed the conformation of the mud guard, which pressed against his body higher up as he was forced along the mud guard, which finally had described a half circle on the body; his body then came in contact with the stationary tires which made a contact still higher up on the body and was easily against the chest wall or back if he was rolled in the process. As he reached this point relief came, it is not clear how, and he sat on the running board, where his foreman found him injured. The record is very large for this kind of a case, due to medical expert testimony produced upon the one issue, viz., the causal relation between the injury and cause of death. It appears beyond doubt that death was caused by tuberculosis, and the bone of contention is, did the injury contribute to, accelerate, activate and give velocity to the progress of the disease? If there is any evidence to sustain the affirmative of this proposition, it will be held to be covered by the contract of insurance and appellant cannot escape liability. (McCahill v. N. Y. |