testimony, the probative effect of such evidence is unchanged, and an award which is altogether dependent upon such testimony cannot be sustained, where there is substantial evidence to the contrary." Thus hearsay testimony of the deceased workman's statements as to the cause of the accident, made at a time when he was in a highly nervous state, which resulted in delirium tremens, causing death, is no evidence at all, where there is substantial legal evidence that no such accident happened.**

46

Statements made by the injured workman relative to his bodily or mental feelings may be admitted, but his statements relative to the cause of his illness should be excluded. This is true of statements made by a deceased workman to a fellow servant as to the cause of his injury. The statement of a workman, made immediately after an accident, that he had received a pin prick while cleaning spittoons, made when he was unconscious of the tragical results which were to follow, was the best evidence of the surround ings and circumstances of the cause of his fatal malady."

44 Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 N. E. 507, reversing 169 App. Div. 450, 155 N. Y. Supp. 1.

45 Id.

46 Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 19160, 771; Gilbey v. Great Western Ry. Co., 3 B. W. C. C. 135. There was no error in receiving evidence as to declarations of the deceased employé, Pigeon v. Employers' Liab. Assur. Corp., 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737.

47 Reck v. Whittlesberger, supra. As to probative effect of workman's dec larations, see next section.

But in Allard v. N. Y., N. H. & H. R. R. Co., 1 Conn. Comp, Dec. 885, where the claimant's statement that he had received a strain resulting in an injury to his hip, and had called the attention of two fellow employés to the fact was unsupported, and the two workmen denied having any knowledge of the injury, it was held he had not sustained his claim by a preponderance of evidence.

48 Patch v. First National Bank of Milwaukee, Rep. Wis. Indus. Com. 1914 15, p. 9.

§ 219. Burden of proof and evidence to sustain it-Presumption

The burden of proof is upon an applicant to establish his claim by a preponderance of credible testimony. This burden may in some cases be discharged by the testimony of the applicant alone, but such testimony must convince the mind that he has made his. claim in good faith, and is entitled thereto." It was held in a Michigan case, however, that where there is no evidence as to an accident arising out of and in the course of an employment, other than statements of a deceased employé in the absence of his employer, an award cannot be sustained.50 Proof of the workman's death may be made by circumstantial evidence, and the finding of the body is

49 Denker v. Pacific Stevedoring & Ballasting Co., 1 Cal. I. A. C. Dec. 14. The burden of proving facts necessary to make out a case rests on the party petitioning for relief under the Act as much as it does on the plaintiff in any proceeding at law. Corral v. William H. Hamlyn & Son (R. I.) 94 Atl. 877. An applicant for disability caused by accidental injury must prove his claim by a preponderance of the testimony. Rebello v. Marin County Milk Producers. 1 Cal. I. A. C. Dec. 87; W. R. Rideout Co. v. Pillsbury (Cal.) 159 Pac. 435. The burden of proof is on the applicant to establish by competent proof the fact of death. Western Grain & Sugar Products Co. v. Pillsbury (Cal.) 159 Pac. 423. In Stampick v. American Steel & Wire Co., 1 Conn. Comp. Dec. 474, Commissioner Beers said the burden of proof resting upon the claimant is "a burden of proof which does not rest on any technical rule, but which is inherent in that principle of justice which determines that one cannot secure from another the payment of money without showing that he is entitled to it." The burden of proof in all claims for compensation rests on the claimant to furnish convincing proof to the Board as to every jurisdictional fact, or to furnish proof of facts from which such jurisdictional facts may be clearly deduced. In re Gertrude Patterson, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 33. The testimony of a workman that the loss of an eye had impaired his efficiency as a workman, because he could not gauge distances as accurately as before, was a sufficient basis for a finding that there was a substantial permanent impairment of his earning capacity. Oliver v. Christopher, 98 Kan. 660, 159 Pac. 397.

50 Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771. This rule is emphasized to the extent of even holding admission of such evidence reversible error, because the mind of the trial court might have been "colored by his admitting statements which are inadmissible as evidence." Id.; Smith v. Hardman, Ltd., 6 B. W. C. C. 719.

not an indispensable requisite to a conclusion that the employé came to his death by violence. 51

A prima facie case is made when it is shown that an employé was at his usual place of employment, at the usual time of day when he was expected and required to be there, and an injury of any character is shown.52 Where it is difficult to determine where the weight of testimony lies concerning a given state of facts, or condition or manner in which an accident happened, the legal presumption favors the payment of compensation.53 In other words, if the evidence, though slight, is yet sufficient to make a reasonable man conclude in the claimants' favor on the vital points, then his case is proven. But the rational mind must not be left in such uncertainty that these essential elements are not removed from the realm of fancy.5*

The burden of proof in respect to particular matters, and the sufficiency and probative effect of evidence relative to such matters, is considered in other sections.55

The presumptions created by the New York Act, that the claim comes within the law, that sufficient notice was given, and that the injury was not caused by the employé's willful intention or intoxication, do not arise until an accident arising out of and in the

51 Wstern Grain & Sugar Products Co. v. Pillsbury (Cal.) 159 Pac. 423. 52 Cerny v. Wood Street Mill Co., Bulletin No. 1, Ill., p. 52.

53 Isidora v. Rockford Gas Light & Coke Co., Bulletin No. 1, Ill., p. 42. 54 In re Sponatski, 220 Mass. 526, 108 N. E. 466, L. R. A. 1916A, 333; Plumb v. Cobden Flour Mills Co., Ltd., [1914] A. C. 62; Barnabas v. Busham Colliery Co., 4 B. W. C. C. 119, H. L.; Flecher v. Owners of the Ship Dutchess, [1911] A. C. 671. See also Childs v. American Exp. Co., 197 Mass. 337, 84 N. E. 128; Bigwood v. Boston & N. St. R. Co., 209 Mass. 345, 95 N. E. 751, 35 L. R. A. (N. S.) 113.

In Foley v. A. T. Demarest & Co., 1 Conn. Comp. Dec. 661, where the evidence to show that the workman was injured while in the employ of one of the defendant companies was hardly more than a mere guess, it was insufficient to sustain the burden of proof against that defendant.

55 For section references, consult index.

course of the employment of the claimant by the defendant has been proven.56

§ 220. Report-Evidentiary effect

The report of the accident made by the employer as required by statute is competent prima facie evidence of the facts stated therein, subject to be explained or contradicted.57 Where the report is made by the employer's agent authorized to make same, the employer is bound thereby.58 A repart made by a Commission under statutory authority may be considered by it, when it has been laid before the parties.59

§ 221. Medical examination

Submission to a medical examination to afford opportunity to procure evidence, is ordinarily required. A claim that the injured

60

56 (Wk. Comp. Act, § 21) Collins v. Brooklyn Union Gas Co., 171 App. Div. 381, 156 N. Y. Supp. 959.

57 First Nat. Bank v. Indus. Com., 161 Wis. 526, 154 N. W. 847.

A report of the employer constituted prima facie evidence that the accident occurred as reported, and that the injury arose out of and in the course of eployment. (Pub. Acts Ex. Sess. 1912, No. 10) Reck v. Whittlesberger, 181 Mich 463, 148 N. W. 247, Ann. Cas. 1916C, 771.

58 The Supreme Court of Michigan has held that such reports are admissi ble. First Nat. Bank v. Indus. Com., 161 Wis. 526, 154 N. W. 847; Reck r Whittlesberger, 181 Mich. 463, 148 N. W. 247, 249, Ann. Cas. 1916C, 771. This conclusion finds support in Seaboard Air Line Ry. Co. v. Florida, 203 U.. 261, 27 Sup. Ct. 109, 51 L. Ed. 175; Chicago & N. W. Ry. Co. v. Railre! Commission, 156 Wis. 47, 145 N. W. 216, 974.

59 A report made by the Industrial Commission under St. 1911, § 230 subd. 10, authorizing the collection and publication of statistical and other information, may be considered by the Commission as evidence when it has been laid before the parties. International Harvester Co. v. Indus. Com., 137 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330.

60 In re McLean, 223 Mass. 342, 111 N. E. 783.

The evidence showed that the employé had been requested by the Beard to report at the office of an impartial physician for examination, as provided by part III, § 8, of the Act, and that he had failed to do so. Other ev

employé refused to submit to a medical examination is not substantiated, where before the employer's physician arrived the employe's counsel announced that they would not consent to an examination, but no demand appears to have been made after the physician arrived, and the anticipatory refusal did not lead the prosecutor to countermand him; he afterwards appearing and being sworn as a witness.1

Where within a few weeks from the decision of the California Commission an operation is performed, and it becomes possible that permanent disability may be lessened considerably, the Commission will allow a further examination at any time upon the request of either party to determine the extent of permanent disability, whether a year has elapsed or not.62 Where the opinions of eminent physicians as to whether the applicant had varicose veins, and whether his disability was affected thereby, are conflicting, and the parties agree to rest their decision on the report of a medical referee, who reports that there had never been varicose veins, such report will be accepted as the basis of an award in favor of the applicant.63

The duty of claimants under the original federal Act, continued in force as to injuries prior to the Act of 1916, to submit to medical. examination at least once in six months, is mandatory upon them; but the obligation of the Secretary to provide such an examination is directory, so that a right to compensation is not lost by the latter's

dence indicated that his incapacity for work had ceased. The employé filed a request for a hearing about four months after he had been notified to report for an impartial examination, and was held not entitled to compensation. Diminico v. Fidelity & Casualty Co. of N. Y., 2 Mass. Wk. Comp. Cases, 328 (decision of Com. of Arb.).

€1 Birmingham v. Lehigh & Wilkesbarre Coal Co. (N. J. Sup.) 95 Atl. 242. 62 Peterson v. Pellasco, 2 Cal. I. A. C. Dec. 199.

63 O'Neal v. Palmer & McBryde, 2 Cal. I. A. C. Dec. 745.