125 124 Carrier's application for review, Feb. 14, 1934 Dear Sir: Re: 1-C-553324-C-William Devellier (Dec'd) vs. Comm. No. 3223805 An award was made in the above captioned case on February 7, 1934, for four-sixths of a week compensation for the period from December 16, 1932, to December 20, 1932, and the case was closed. Notice of this award is dated February 7, 1934, and was received by us on February 9, 1934. We do not believe the Referee was justified in taking this action. May we at this time refer you to our letter under date of February 7, 1934, in which we requested a review of the award made in the death case. We repeat all objections at this time and particularly call your attention to the fact that there has been no proof of any accidental injury, no proof that notice was given to the employer within the statutory period as prescribed by statute and no proof that the condition causing disability was in any way related to the accidental injury. We. therefore, respectfully request a review of the action taken in this case and a determination by you of both cases in accordance with the facts and law. Very truly yours, (Signed) Samuel Kaltman. 126 SK:RD. Claimant's request for review, Feb. 24, 1936 127 CLAIMANT'S REQUEST FOR REVIEW, Bart J. O'Rourke Court Square Building Two Lafayette Street February 24th, 1936. 128 129 Honorable Richard J. Cullen, Re: Charlotte Doyle vs. Century Circuit, Inc.; Death Dear Sir: Both the above entitled cases were closed on 2-2036 by the decision of the Referee that "Notice of accident was not given within thirty days." We contend that the Referee erred in the above mentioned decisions and hereby request a review thereof on the following grounds: 1. That the Referee in making the above decisions reversed himself, in view of the fact that on 2-7-34 he decided both claims in favor of the claimant on the facts before him. No evidence has subsequently been introduced to in any way weaken the claimant's position, but, to the contrary, any new evidence has strengthened the claimant's case on the question of accident. 2. That the question of notice that has recently been brought into the case is not material and that 132 131 130 Claimant's request for review, Feb. 24, 1936 both the Referee and the Board were of the same opinion when the decision of 2-7-34 in favor of the claimant was made and affirmed by the Board on 11-28-34. The record distinctly sets forth that the Referee upon rendering his decision of 2-7-34 went into the question of accident and notice and heldthat the carrier offered the claimant an operation and claimant died as a result thereof and that the carrier in undertaking to operate on the claimant prior to a determination of the issue of accident, and although the claim was being controverted on that issue, it became liable for compensation under the law. The carrier requested a review and the Board on 11-28-34 unanimously sustained the Referee's aforesaid ruling and affirmed the award. 3. That it was not proper for the Referee to make a decision on 2-20-36 since it is our contention that the status of the case should be considered as still before the Appellate Division on the carrier's appeal; that the case was returned to the Referee's calendar merely for the purpose of completing the record where the Attorney General deemed the same deficient before presenting the case to the upper court. 4. That the status of the case remains unchanged. An appeal is pending from the Referee's decision of 2-7-34 and its affirmance by the Board on 11-28-34. That no new evidence has altered the situation in this case that existed when the Hon. L. W. Hatch as member of the Board made his memo of decision dated 11-28-34 wherein he starts with the Claimant's further application for review, 133 134 premises that the establishment of an accidental injury is not material in the present case. In view of the above, it is our contention that the decision of the Referee made on 2-20-36 should be vacated and the case referred back to the Attorney General for his attention with the status of being before the Appellate Division by virtue of an appeal filed by the employer-carrier from an award in favor of the claimant on 2-7-34 and affirmed by the Board on 11-28-34. Your kind and early attention to this matter will be greatly appreciated. Yours very truly, Bart J. O'Rourke. CLAIMANT'S FURTHER APPLICATION FOR REVIEW, SEPT. 25, 1937 10 East 40th Street New York, N. Y. September 25, 1937. 135 Honorable Richard J. Cullen, Chairman, Industrial Board, 80 Centre Street, New York, N. Y. Re: William Devellier v. Century Circuit, Incorpo rated-Comm. Nos. 3223805 and 3225468 138 137 136 Claimant's further application for review, Sept. 25, 1937 Dear Sir: This is an application for a review by the entire Board of a decision handed down on January 13, 1937, disallowing the claim for death and disability in both of the above captioned matters. The decision in the case was made on January 9, 1937, by the Honorable James A. Corcoran, a member of the Board. I have recently been retained by the mother in this case, and am writing for a further consideration by the entire Board after carefully reviewing all of the evidence in the case. The decision as it now stands, in my mind, constitutes a very grave miscarriage of justice, so much so that it is difficult for me to understand, after years of experience in this type of case, how either the Referee or the Board member could have come to the decision made. After various hearings before the Death Referee extending from December 21, 1932, to November 1, 1933, the Referee, on January 25, 1934, made an award to the mother for death benefits. I refer you to the memorandum of the Referee dated January 18, 1934, in which he held as the basis for his award, that the employer and carrier were liable by reason of the fact that their own surgeon operated on the deceased claimant and his death was the natural result of the operative procedure undertaken by the carrier. He further held that the deceased was manager of a theatre when an explosion occurred during the performance, and a few persons were injured in the stampede following the explosion. One of these |