[Vol. 15] State Industrial Commission Margaret Brockelbank, daughter, aged three years, at the rate of one dollar and thirty-two cents weekly to each until they shall respectively arrive at the age of eighteen years; and in case of the subsequent death of Elizabeth Brockelbank, 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 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. The opinion of Commissioner Henry D. Sayer herein is adopted as the opinion of this Commission. In the Matter of the Claim of ANNA GRAFFE, Widow, for Compensation uder the Workmen's Compensation Law, for the Death of FELIX GRAFFE, against ART COLOR PRINTING Co., Employer; ETNA LIFE INSURANCE COMPANY, Insurance Carrier Death Case No. 51839 (Decided March 14, 1918) Injuries sustained by Felix Graffe, resulting in his death, while employed by the Art Color Printing Company in New York city. The only question at issue is as to whether the decedent's death was caused by an industrial accident. An award has already been made to claimant and the case now comes before the Commission for adjudication as to the cause of death, this proceeding being brought at the instance of the Commission's own counsel. The decedent was found dead with a fractured skull. Held, that under the facts shown, the award cannot be sustained. Also, held, that there must be competent proof of an industrial accident before the presumptions of section 21 of the Compensation Law can be applied, and there being no such proof furnished in this case, the award cannot be sustained on the record as it now stands, and that the case should be put down for a rehearing so that the proof may be supplemented or if that is not possible that the award be rescinded. State Industrial Commission [Vol. 15] An award has been made in this case to the widow and two minor children of Felix Graffe who died on November 20, 1917, from which an appeal has been taken, and the case now comes to the Commission at the instance of the Commission's counsel to have a determination made whether there is sufficient proof that the deceased's death was caused by an industrial accident. Mr. Graffe was working in the press-room of his employer and about ten o'clock in the evening had returned from a trip which he had taken to get his supper, and at about 10:45 o'clock he was found lying on the floor between two rolls of news print paper, each roll of which weighed from 1,000 to 1,500 pounds. He was removed to Bellevue Hospital where he died four hours later, and the record seems to show that he had a fractured skull. Nobody was present when Mr. Graffe fell and he was never able to state the cause of his fall. The only question referred by counsel is whether an industrial accident occurred. John Graffe, for claimant. T. Carlyle Jones, for insurance carrier. LYON, Commissioner. While section 21 of the Compensation Law provides that certain presumptions are applied to a compensation case, the courts have held, following the decision of the Commission, that these presumptions do not apply to the happening of an accident. It, therefore, follows that there must be competent proof of an industrial accident before the presumptions of section 21 can be applied. The death certificate in this case gives the cause of death as "chronic endocarditis- fracture of the skull." The statement has been made in this case that unless we presume that Mr. Graffe had an industrial accident we have to deny the claim on the presumption that he fell because of vertigo or sickness, but I do not think this is the fact. If we can find no proof of an industrial accident, it seems to me that the claim must be denied not on the presumptions at all, but for failure of proof. It seems to me that the case is covered by the decision in the case of Collins v. [Vol. 15] State Industrial Commission Brooklyn Union Gas Company. Mr. Collins was working on the street and fell to the street fracturing his skull. An award was made on the theory that it was caused by an accident, there being some claim that he stumbled over something in the street, but on review by the court it was found that there was no such proof and that the case was bare of proof as to an accident and the court held that the heart syncope from which Mr. Collins died had not been traced to an industrial accident. It is to be noticed in this case that the two rolls of paper between which the body of Mr. Graffe was found were lying flat and there is no evidence that they fell over against him or that he was attempting to remove them before his death. I suppose it is quite true that where a man is found lying with a fractured skull in a position where the circumstances seem to show that he has fallen from a height, as, for instance, in the case of a man found dead at the bottom of an elevator shaft, the Commission has the right to draw the inference that the fall was the cause of the fractured skull, but this case is entirely barren of evidence of this kind. There seemed to be neither witnesses who can testify that anything happened to Mr. Graffe causing him to fall, nor any circumstances showing that he slipped and fell. In other words, the case seems to me to be utterly barren of proof of any accident. In the Collins case, the Appellate Division said: "The Commission is not authorized, however, to make an award under the Act in the absence of at least some evidence that the employee met with an injury while he was at work for the specified employer and as a consequence of something that had relation to the work of the employer something done by him or by others while he was so employed." In my opinion the award cannot be sustained on the record as it now stands and I advise that the case be put on for a rehearing on notice to all parties, for the purpose of either having the proofs supplemented, if that be possible, or the award rescinded. On the 14th day of March, 1918, the Commission acted on the foregoing matter in accordance with the foregoing opinion. State Industrial Commission [Vol. 15] In the Matter of the Claim of JOSEPH PALELLA for Compensation under the Workmen's Compensation Law, against LLOYD BRAZILEIRO STEAMSHIP Co., Employer; EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Insurance Carrier Case No. 68089 (Decided March 18, 1918) Injuries sustained by Joseph Palella, while employed by Lloyd Brazileiro Steamship Company, as a longshoreman in New York city. On January 3, 1918, Joseph Palella, while employed as a longshoreman at pier No. 5, Bush Docks, in the borough of Brooklyn, city of New York, was closing a door when he was hit on the head with a hammer which a fellow employee was using in driving a bolt. Palella sustained injuries as a result, receiving a deep laceration over the left eyebrow requiring several stitches to be taken and disabling him from that time to March 18, 1918. On that date he was still disabled. The average weekly wage of Joseph Palella was the sum of twenty-five dollars and ninety-six cents. Award made. This claim came on for hearing before the State Industrial Commission at its office, No. 230 Fifth avenue, borough of Manhattan, city of New York, on March 18, 1918. The accident out of which this claim arose occurred subsequently to the enactment by Congress of an act amending sections 24 and 256 of the Judicial Code, relating to the jurisdiction of the district courts, so as to save to claimants the rights and remedies under the Workmen's Compensation Law of any State. Robert W. Bonynge, counsel to State Industrial Commission. Bertrand L. Pettigrew, attorney for employer and insurance carrier. Claimant in person. BY THE COMMISSION.- All the evidence submitted before the Commission having been heard and duly considered, the Commission makes its conclusions of fact, award and decision, as follows: [Vol. 15] State Industrial Commission On January 3, 1918, the day when Joseph Palella received his injuries, he resided at No. 259 Fifty-eighth street, Brooklyn, New York, and was employed by Lloyd Brazileiro Steamship Company of 44 Whitehall street, New York city, engaged in the business of stevedoring. Joseph Palella was employed as a longshoreman. On said date, Joseph Palella was working for his employer at Pier 5, Bush Docks, Brooklyn, and while engaged in the regular course of his employment as longshoreman, and while closing a door, he was hit on the left side of the head with a hammer, which was being used by a fellow employee in driving a bolt, and he sustained a laceration about one and one-half inches long and about one-half inch deep over the left eyebrow, which wound required three stitches, and which injuries disabled him from the date of said accident to March 18, 1918, and on that date he was still disabled. The average weekly wage of Joseph Palella was the sum of twenty-five dollars and ninety-six cents. It has not been established as a fact that the claimant failed to comply with section 18 of the Compensation Law in respect to notice of injury, and it is, therefore, presumed under section 21 that sufficient notice was given. It also appears that the employer was aware of the accident at the time of the happening thereof, and furnished medical attention immediately; and therefore, neither the employer nor insurance carrier was prejudiced by the failure, if any, to give written notice of injury within ten days after disability. Award of compensation is hereby made against Lloyd Brazileiro Steamship Company, employer, and Employers' Liability Assurance Corporation, Ltd., insurance carrier, to Joseph Palella for the period of ten weeks and three days from January 4, 1918, to March 18, 1918, at the rate of fifteen dollars per week, and this claim is hereby continued for further hearing, and the claimant is directed to resume work if he is able to do so. It is presumed under section 21 of the Compensation Law that sufficient notice of injury was given to the employer. The failure, |