The opinion
Gibson, P. J. (concurring in part and dissenting in part).
The supposedly padded bill was not one of the “ required reports” contemplated by the specification or by the Workmen’s Compensation Law; nor was it “ filed * * * with the Workmen’s Compensation Board ”, as charged, nor was it required to be so filed. Although the New York County Medical Society, upon its investigation, had apparently accepted the explanation that petitioner’s “ office manager had mixed the charts of two patients by the same name ’ ’, the respondent board was not bound to accept that explanation and did not do so; but the obvious fact remains that the bill was not within the specifications charged.
With respect to the second specification, the respondent board was warranted in accepting the testimony of the investigator Davis that petitioner had offered to give her injections which would terminate ‘ ‘ a weak pregnancy ’ ’; and the fact that petitioner knew that they would do no such thing should scarcely exculpate him; and at the very least he was guilty of misrepresentation of the efficacy of the suggested treatment, or “deception” as the board put it, within the proscription of the statute (Education Law, § 6514, subd. 2, par. [e]; Penal Law, § 1142) and within the purport and intent of the charge. In my view the charge involving the witness Smith was not sustained, the uncontradicted testimony being that, before prescribing or otherwise acting, petitioner wished to make an examination or test which the witness declined to undergo.
Reynolds and Atjlisi, J J., concur with Herlihy, J.; Gibson, P. J., concurs in part and dissents in part, in a memorandum, in which Hamm, J., concurs.
Determination modified by annulling the finding as to specification “ 1 ”, and, as so modified, confirmed, without costs.