Opinion
July 1, 1925.
Appeal from State Industrial Board.
E.C. Sherwood [ William B. Davis of counsel], for the appellants.
Albert Ottinger, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondent State Industrial Board.
Payne Lindsey, for the claimant, respondent.
The only question raised upon this appeal is the allowance of the claim of the mother acting as a practical nurse in attendance upon her adult son. The value of services and the necessity for the same have been properly proved, but the Board finds the following: "The employer herein had knowledge of such requirement but failed and neglected to provide the same."
I find no evidence in the case that the employer had any knowledge whatsoever of the requirements of the claimant nor does the respondent cite on her brief any reference to any testimony to sustain such finding. The respondent relies upon the equities of the case rather than upon the provisions of the Workmen's Compensation Law (§ 13), and argues that it is much cheaper for the mother to attend her son at ten dollars per week than to pay the expenses of a trained nurse. While that may be true, there is no provision authorizing it, neither was there any authority given for the employment. The respondent cites Brown v. Walton Water Co. ( 199 App. Div. 948). In that case one of two brothers was injured and the other acted in the capacity of a practical nurse and presented his claim which was allowed. The physician testified that he employed the brother to attend the claimant, and the claimant nurse also swore that he was employed by the Walton Water Company to care for his injured brother, but the case referred to is not like the one now before us, as in that case specific authority was given for the employment of the brother as a nurse. In this case there was no authority given, neither was there any proof that the employer was requested to furnish services of a nurse or that either the employer or his superintendent or foreman had any knowledge of the nature of the injury and neglected to provide for it. The unverified proof of death which is printed in the records but not in evidence shows that the physician making the same attended the decedent from the date of the injury until the date of his death and that his services were engaged by the employer. From this the inference is claimed that the employer had knowledge of the condition of the son and his requirements for nurse attendance, but the proof fails by reason of the fact that the report is not verified. The respondent claims that no objection was made to this award. In fact there was no objection to the dependency award but there was specific objection made to the allowance for services of a practical nurse.
The award should be modified by striking therefrom the provision allowing the mother $230 for services rendered as a practical nurse and as so modified affirmed, without costs.
Award modified by striking therefrom the provision allowing the mother $230 for services rendered as a practical nurse, and as so modified unanimously affirmed, without costs.