The opinion
McNamee, J. (dissenting).
It is entirely clear from the testimony and findings, and from the complaint and bill of particulars attached thereto as exhibits for identification, that the claimant suffered one injury in his employment, and was treated therefor at the instance of the employer and carrier, within the contemplation and pursuant to the provisions of the Workmen’s Compensation Law. It likewise appears from claimant’s verified complaint in his action against the carrier that he suffered an injury due to the malpractice by the physician of the employer and the carrier. Thus there were two distinct injuries, although coalescing (Milks v. *350 McIver, 264 N. Y. 267 ), and as a result of both injuries the claimant suffered a one-third loss of his hand. The claimant brought a common-law action against the carrier, and alleged the maltreatment administered by the physician, and then settled that action for $3,500, about twice the amount recoverable under the statute for the schedule loss found. The carrier offered to show the relation of these injuries, and to what extent claimant was affected by each. But the broad ruling and peremptory attitude of the referee prevented counsel for the carrier from going further than he did in that particular, without defiance of the tribunal before which he was appearing. The referee and the Industrial Board refused to receive any proof of the injury produced by the malpractice; and no proof was offered as to the extent of the injury which resulted from the accident alone. Accordingly, the only proof before the Board was the fact that the claimant cut his wrist, and that three years later and after the malpractice injury, he was suffering the one-third loss of the hand. Whatever damage resulted from the malpractice had been satisfied by the settlement, at least in part if not entirely. There was no proof that the one-third loss of the hand was due to the original injury. How much of this damage was due to the accident and how much to the malpractice, the testimony does not show; yet the Board found that the entire loss was due to the accident, and this in direct conflict with the claimant’s complaint in his common-law action. It was error for the Board to exclude and refuse to consider the complaint and bill of particulars, as it was error to reject the proof showing the extent of the respective injuries. Because of this action of the Industrial Board an excess recovery, and evidently a double recovery, has been pérmitted; and there is no proof to support the finding actually made.
I vote to reverse the award and remit the claim.
Bliss, J., concurs.
Award affirmed, with costs to the State Industrial Board.