Memorandum of decision of Mr. Hatch, Nov. 28, 1934 169 claim closed. There is insufficient information to pass on disability claim for which reason it is continued. BWN-IA. B. W. Nye, Referee. MEMORANDUM OF DECISION, MR. HATCH, NOV. 28, 1934 November 28, 1934. 170 Re: Cases Nos. 3223805 (Disability) and 3225468 (Death)-William DeVellier, dec. vs. Century Circuit, Inc. Upon application of the insurance carrier without submission of further evidence, we have reviewed the record in this case on the issue of whether the award on the death claim is barred by reason of the fact that the claimant did not suffer an accidental injury arising out of and in the course of the employment, and on the issue of whether the evidence is sufficient to establish the mother's dependency. On the question of accident, we believe the evidence fails to establish an accidental injury arising out of the employment. This appears to have been the finding of the Referee also. But in this case the carrier offered the claimant an operation for the hernia claimed to be due to an accident and claimant died as the result of the operation. The Referee has held that in undertaking to operate on the claimant 174 173 172 Memorandum of decision of Mr. Hatch, prior to a determination of the issue of accident, and although the claim for compensation was being controverted on that issue, it became liable for compensation under the law. The question for the Board is whether this ruling was proper. The question here presented is unusual and of somewhat far reaching importance. Before deciding it the undersigned member consulted orally with the other members of the Board, and after discussion of the circumstances and the issue, it was the consensus of opinion of all the members that the Referee's ruling should be sustained. On the issue of dependency of the mother, we believe, on the whole, that the evidence is sufficient to establish such dependency. Accordingly, the award as made to the mother of the deceased is affirmed. LWH-SK. L. W. Hatch, Member, Industrial Board. The Referee's decision in this case has been reviewed by the Board and the decision was affirmed 11-28-34, an assessment is therefore indicated. Memorandum of decision of Referee Nye, Re: Case No. 3225468-3223805-William DeVellier -Century Circuit Co. Inc. It is evident that notice of accident was not given within thirty days and there are no grounds shown upon which such failure may be excused. Upon that ground both claims are disallowed. (Signed) B. W. Nye, BWN-IA. Referee. 180 179 178 Memorandum of decision of Mr. Corcoran, MEMORANDUM OF DECISION OF MR. State of New York Department of Labor New York City, N. Y. Inter-Office Communication January 9, 1937. Re: Cases Nos. 3223805 (Disability) and 3225468 (Death)-William DeVellier vs. Century Circuit, Inc. Upon application of the claimant without submission of further evidence, we have reviewed the record on the issue of notice. Decedent herein was employed as manager of a theatre in which an explosion occurred on September 5, 1932. Employer's report of injury, which was filed on November 14, 1932, states "Was forced to carry a woman patron part of the way upstairs to the ladies' room. Did not realize injury. Right side hurt and last Wednesday, November 5, tried to pick up a can of film which he had to drop immediately. Then went to see doctor who advises operation." Operation was subsequently performed for the repair of the right inguinal hernia and death occurred on December 20, 1932, due to embolus to right ventricle and pulmonary artery following herniotomy. Memorandum of decision of Mr. Corcoran, Jan. 9, 1937 181 182 183 The record reveals that the question of notice was raised at the first and second hearings held before this Department, in addition to the questions of accident, causal relation and dependency. At a hearing held on May 31, 1933, Thomas F. Murray, assistant to the executive general manager, testified that the first knowledge he had that decedent had sustained an accident was sometime in November. Written report was submitted to him advising that while carrying a woman from the orchestra to the balcony, he had suffered a hernia. After getting such report, the matter was referred to the insurance carrier. On January 18, 1934, after several hearings, an award was made to the mother of decedent. It appears from the Referee's memorandum of decision that in his opinion accidental injury arising out of the employment was not established. "However, if an employer accepts a claim and operates with resultant death, liability attaches. It follows that the operative procedure undertaken by the carrier having resulted in death, that liability therefor was created." Review of the above award was then requested by the carrier. It contended that there was insufficient proof of accidental injury, no proof that notice was given within statutory period, lack of competent and probative medical evidence of causal relation and that the evidence does not warrant finding of dependency. The case was subsequently placed on the Board calendar and, after review, the ruling of the Referee |