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Minutes, May 23, 1939

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and seeking a remedy before the Board. If he has a quarrel with the Appellate Division, he has certain rights open to him and further appeal. He wants the Board to reverse the Appellate Division.

Mr. Corcoran: I think the attorney is right. You should call their attention to it.

Mr. Kaltman: No. They have called your attention to a failure in your findings of fact and conclusions of law. It is correctly stated. In other words, you haven't that particular statement in your findings of fact and conclusions of law.

Mr. Nolan: I suggest he read the rest of the decision. It says: "This finding is quite significant, that the employer's own doctor operated on the deceased, and this operation caused the death. Claimant had not been disabled so that he was unable to work until he entered the hospital on the day for the operation; likewise the employer knew of the incident in which claimant was supposed to be injured. He had picked up an elderly woman, a patron of the theatre, and carried her down the stairway. Notice of this fact was given within three days after the accident." You have to take into consideration everything, not just what you like. This case has been going on since 1932. I move for an award at this time.

Mr. Kaltman: All other questions are still opennotice, accident, causal relation

Mr. Nolan: There are no questions open under

the decision of the Appellate Division at all.

Mr. Corcoran: Did they remit it for an award?
Mr. Nolan: No.

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Minutes, May 23, 1939

Mr. Corcoran:

Then, it is an open case.

Mr. Kaltman: May I state this for the record: Award was made originally; we were on appeal; the printed record of appeal had been served; proof had been served, and then the Attorney General returned it to the Board for further consideration on question of notice, so that we were never permitted to go up on the other issues; then the finding was made I just narrated by the Referee, a single member of the Board, and then by the Board.

Mr. Corcoran: That is true, but you can go now after the decision.

Mr. Kaltman: That is what I am making clear. These issues are still open.

Mr. Kaltman: As a matter of fact, we were put to great expense, and then the case was dismissed. We were never reversed; then it went up on the claimant's appeal. I would like to submit a memorandum. Mr. Corcoran: I have no objection.

Mr. Nolan: Will you consider my request for a fee? I carried this to the Appellate Division. I have been in it for two years. I first came into the case after the Referee's decision was affirmed by your Honor. I made application for hearing before the full Board, and the Board affirmed by a vote of two to three. Then, I was compelled to prepare and print the record and go to Albany, and go to New York. I have been in Buffalo two years. In justice to my client I felt I should be here today, though ordinarily I would not come down.

Mr. Corcoran: What fee do you ask?

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Minutes, May 23, 1939

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Mr. Nolan: $750. There is approximately $2800 back compensation due.

Mr. Corcoran: How much expenses did you incur?

Mr. Nolan: They have all been paid by the costs except my trip to New York today. The reversal was with costs.

Mr. Corcoran (To Mr. Kenney): You are here for what purpose?

Mr. Kenney: The original award gave us a fee of $150.

Mr. Nolan: My client opposes it on the ground any lien they had expired on the disallowance of the claim.

Mr. Corcoran: The disallowance has been put back.

Mr. Kaltman: There has been no award yet.

Mr. Corcoran:

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You were in the case before me?

Mr. Kenney: Yes; we got all the evidence. Whatever is in the record is our evidence.

Mr. Corcoran: You oppose a fee?

Mr. Nolan: Yes.

Mr. Corcoran: All right. Decision reserved on the record on the question of excusing the failure to give notice.

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December 27, 1939.

Certified true and correct transcript.

Corinne R. Jackson,

Hearing Stenographer.

Trans. 11-1-39.

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Exhibits

EXHIBITS

MEDICAL REPORT DR. BOHRER — DEC. 20, 1932-EXHIBIT 1, OF 9-18-33-REFEREE NYE

J. V. Bohrer, M.D.

116 East 56th Street, New York

December 20, 1932.

Received in evidence, marked Exhibit 1 as of Sept.

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Re: No. 1-C-553324-C-Wm. DeVellier v. Century
Circuit Co.-9-5-32

Gentlemen:

This patient gave a history of traumatic hernia due to carrying a woman up a flight of stairs.

Physical examination was entirely negative except for being considerably overweight and the local condition. There was a right indirect inguinal hernia which protruded through the external ring and into the upper scrotum. It was readily reducible. No pain on palpation. On admission to the hospital his blood count was a normal red cell count, and a slightly elevated white cell count, namely 10,000, but a normal differential.

Exhibits

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Operation: Pathology-There is an excess of peniculous adiposis. Muscles were very well developed. There was a huge sac that was filled with omentum protruded down to but not into the scrotum. Fundus of the sac was in contact with the tunica vaginalis but did not communicate with it. The appendix did not present itself and was not examined. Four inch oblique inguinal incision.

Procedure:

Sac was isolated, dissected down to the neck, transfixed, ligated, amputated. Hernia was repaired by Basini method. The cord transplanted under the external oblique, skin closed with silk worm gut.

Post-operative:

Convalescence was uneventful.

Had a temperature for about three days, the highest 102. End of 5th day his temperature was normal. From 5th to 10th day was entirely uneventful. Wound healed by primary union. Sutures removed on 7th day. Dec. 20, 1932-11:15 A. M. his 10th day post-operative, he complained to the nurse of a slight pain in his stomach. He then said the pain "is in my heart" and immediately started a convulsive seizure. The house doctor was on the ward and immediately gave him emergency treatment. He became cyanosed, pulseless and stopped breathing. Artificial respiration and oxygen inhalations, respiration again started. He had a second convulsive seizure and when I reached the hospital 20 minutes after first attack, he was pulseless, but still breathing rhythmically. He died shortly thereafter at about 12:15. Apparently death was due to an embolus. I believe this hernia to be of the con

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