State Industrial Commission [Vol. 19] years; Thelma Eldridge, daughter, aged one year; and Helen Eldridge, posthumous child, born April, 1916, the claimants herein. Award of compensation is hereby made against Endicott, Johnson & Co., employer, and Employers' Liability Assurance Corporation, Ltd., insurance carrier, to Gertrude I. Eldridge, widow, aged thirty-three years, at the rate of $3.462 weekly during widowhood, with two years' compensation in one sum upon remarriage, and to Grace Eldridge, daughter, aged ten years; Ruth Eldridge, daughter, aged six years; Curtis Eldridge, son, aged four years; Sarah Eldridge, daughter, aged two years, and Thelma Eldridge, daughter, aged one year, at the rate of $0.8456 weekly to each, covering the period from November 20, 1915, the date of death of William Eldridge, to April 2, 1916, the date of the birth of Helen Eldridge, posthumous daughter. Further award to Grace Eldridge, daughter, aged ten years; Ruth Eldridge, daughter, aged six years; Curtis Eldridge, son, aged four years; Sarah Eldridge, daughter, aged two years; Thelma Eldridge, daughter, aged one year, and Helen Eldridge, posthumous daughter, at the rate of $0.7052 weekly to each from April 2, 1916, and until they shall respectively arrive at the age of eighteen years; and in case of the subsequent death of Gertrude I. Eldridge, widow, then the payments to the children shall be proportionately increased until each child shall be receiving a sum equal to 15 per cent of the above mentioned average weekly award, but in no event shall the total amount payable exceed 663 per cent of such wages; and if the payment to the widow shall otherwise cease, or if the payments to any child cease by operation of law or otherwise, then the payments to each of the remaining children shall be increased to 10 per cent of the said average weekly wage. Further award to Gertrude I. Eldridge, widow, in the sum of $98.60, on account of the funeral expenses of William Eldridge, deceased. Pursuant to said award there is due the sum of $1,268.85, covering the period from November 20, 1915, to January 21, 1919. Future payments beginning on January 21, 1919, in the STATE DEPT. REPT.- VOL. 19 28 [Vol. 19] State Industrial Commission sum of $15.38 are to be made every two weeks in accordance with the foregoing award and subject to the contingencies therein expressed. This claim falls within the principle of Horrigan v. Post Standard Company, heretofore affirmed in this court and in the Court of Appeals, 224 N. Y. 620. This case likewise falls within the principle of Hiers v. Hull & Co., 178 App. Div. 350. In the Matter of the Claim of MARY A. MCGURGAN, for Compensation under the Workmen's Compensation Law, for the Death of HUGH MCGURGAN, against BURNS BROS., Employer, and CASUALTY COMPANY OF AMERICA, Insurance Carrier Death Case No. 64872 (Decided January 22, 1919) Injuries sustained by Hugh McGurgan while employed by Burns Bros. and alleged to have resulted in his death. Hugh McGurgan, on February 3, 1916, sustained an injury to one of his hands, necessitating the amputation of the thumb and resulting in the stiffening of two fingers and of restricted motion of the other two fingers. The claim for his injuries having been heard, an award was made for the loss of the use of the hand, the award being for 244 weeks. The hand healed without infection, and there was no defect apparent except the permanent deformity of the hand. A year and ten months after the injury, his widow, the claimant herein, now claims that his death resulted directly from the said injury to his hand, and that he began to fail immediately after the accident, and so continued until his death. The proof, however, shows that McGurgan was a chronic alcoholic, and his death resulted from a complication of diseases brought on by the excessive use of alcohol. The only question herein is the determination whether the death resulted from the old accident. Held, that while, if an accident aggravates or renews a dormant diseased condition so that the natural and logical sequence of such injuries is death of an injured workman, compensation may be allowed, in the present case between the accident and the death there intervened a period of nearly two years, during which he might have become a strong and able man had he refrained from the continual use of alcohol. A man may not, during such a period following an accident, drink himself to death and then have his death charged back to the accident for which he has been awarded full compensation allowed by law. The claim should be dismissed. State Industrial Commission [Vol. 19] Claimant on behalf of herself and eight minor children, claims compensation and death benefits on account of the death of Hugh McGurgan who died December 4, 1917. The cause of death as certified by his attending physician was peripheral neuritis, myelitis and meningitis. It is claimed that the death of Hugh McGurgan was due to an injury sustained by him on February 3, 1916, a year and ten months before his death. The injury in question was to the hand and resulted in the traumatic amputation of the thumb, permanent stiffening of two fingers and restricted motion in the other two fingers. Compensation was awarded to Hugh McGurgan for the loss of the use of a hand, the award being for 244 weeks. Prior to the final award on account of the injury to the hand, McGurgan was examined by the chief medical examiner of this department who described the nature of the injury, the hand being entirely healed at that time with no infection, and there was no defect apparent except the permanent deformity of the hand. On behalf of the employer, it is alleged that McGurgan was an alcoholic at the time of the injury to his hand; that he continued an alcoholic to the day of his death, and that he died of a condition brought on by the continued use of alcohol. Claimant in person. Louis H. Moos, for the employer. Edward C. Sohst, for the Superintendent of Insurance, liquidator of the Casualty Company of America, insurance carrier. SAYER, Commissioner. We have here a claim for death benefits growing out of the death of Hugh McGurgan on December 4, 1917, after an accident to his hand, which occurred February 3, 1916. No question is raised as to the injury to the hand. It is conceded and was found by the Commission that the injury arose out of and in the course of his employment with Burns [Vol. 19] State Industrial Commission Bros. An award of compensation for the loss of the use of the hand was made for the full 244 weeks allowed for the loss of the use of a hand. Therefore the injury which the deceased sustained was compensated in accordance with the full schedule provided in the Compensation Law. But the widow now claims that the death of the said Hugh McGurgan resulted directly from the injury to his hand and that he began to fail immediately after the accident and continued to fail for twenty-two months until the day of his death. In support of this contention, we are met with the testimony of Dr. Doty who was the attending physician during the last few months of the deceased's lifetime. Dr. Doty testifies that in his opinion Hugh McGurgan "began to die" from the very day of the injury to his hand. He saw McGurgan on the day of the injury to his hand, but did not treat it and referred the case to a hospital. He did not thereafter treat McGurgan until April or May, 1917, more than a year later. At that time McGurgan complained, in addition to gastric trouble, of pains in the knees and a burning sensation in the soles of his feet. Dr. Doty at that time made a memorandum to the effect that McGurgan had been drinking. This reference to pains in the knees and in the soles of the feet is the first observation by a physician of symptoms of a peripheral neuritis. Dr. Doty saw McGurgan a month or so later when his condition had not improved and at which time he entered on his notes the word "alcoholic." He continued to treat McGurgan on an average of once a month until the late fall of 1917 when his visits became more frequent and when an almost complete paralysis had set in. If the claim of the widow can be sustained, it must be upon the evidence of Dr. Doty who treated the man as above referred to and who gave it as his opinion that the man's condition at the time of death was the direct sequence of the injury to his hand. No other medical testimony is adduced that tends to prove any causal relation between the death and the hand injury. The record before us is full of references by witnesses to McGurgan's drinking habits and one cannot read the record State Industrial Commission [Vol. 19] without coming to the conclusion that McGurgan was a chronic alcoholic and addicted to almost continual, excessive use of alcohol. It is not contended that the death of the deceased, nor the accident which he sustained, was the result solely of his own intoxication while on duty. The proof with regard to intoxication is brought forward, as I understand it, to substantiate the claim of the employer that death did not result from nor grow out of the injury to the hand, but rather that death resulted from a complication of diseases brought on by the continued use of alcohol. It is not necessary for the determination of this case that the Commission find that the deceased died as the result of over-indulgence in alcohol. It is merely necessary to determine whether or not death resulted from the old accident. Upon this point we have the testimony of the medical experts who were called by the employer. Dr. Osnato, whose expert qualifications are well known to the Commission, reviewed all the evidence in the case and the medical testimony. With reference to the injury to the hand he testified that a "localized injury to an extremity cannot cause those things," meaning peripheral neuritis, myelitis and meningitis. He also testified that alcoholism is the most frequent cause of peripheral neuritis. In answer to a hypothetical question, summing up the evidence in the case, Dr. Osnato testified that the cause of death was chronic alcoholism. Dr. Wildman, called as an expert in nervous diseases, testified that in his opinion there was no connection between the accident and the death. Dr. Pinco, the physician employed by the employer, and who had charge of McGurgan in the hospital, operating on his hand, testified that it was necessary, while McGurgan was in the hospital, for him to prescribe frequent doses of whiskey on account of McGurgan's alcoholic condition, and his fear that to stop the alcohol altogether would result in delirium tremens. Dr. Lewy, chief medical examiner of the Commission, reviewed the entire record of the case and has written a very full and comprehensive opinion. |