14 A.D.2d 425 | N.Y. App. Div. | 1961
The appeal is from a decision of the Workmen’s Compensation Board that claim for disability due to a myocardial infarction occurring on November 14, 1951 and attributed to emotional strain induced by claimant’s observation of an accident to another employee on November 7, 1951, was timely filed, although formal written claim was not made until February 23, 1954, more than two years after the alleged accident (Workmen’s Compensation Law, § 28); the board holding “ that claimant’s testimony on May 19, 1953 constituted a timely filing of a claim ’ ’ and ‘ ‘ further, that payment of wages by the corporate employer with knowledge of the accident was an advance payment of compensation.” The parties limit the issues to these two findings. Claimant had sustained a prior compensable accident on June 3, 1948, when he suffered a coronary occlusion, at which time respondent New Amsterdam Casualty Company was the carrier. At the times of the 1951 incidents appellant State Insurance Fund was upon the risk. We note, as bearing upon the factual background, that by claim
Upon examination of the first ground of the decision, it is clear that the reception of testimony as to one accident upon the hearing of a claim predicated upon another scarcely meets the requirement that 1 ‘ a claim for compensation shall be filed with the chairman ” (Workmen’s Compensation Law, § 28) and respondents do not argue in support of the board’s finding to the contrary. In an early case the Industrial Commissioner held, as appears from the record on appeal, that the parties’ appearance at a hearing within the then statutory one-year period “ constitutes * * * a proper claim for compensation” but this court reversed the award and dismissed the claim “ because of the failure to file the claim for compensation within one year after the accident.” (Chefety v. Hearn & Son, 212 App. Div. 844; see, also, Matter of Simon v. American Express Co., 217 App. Div. 802, affd. 244 N. Y. 560, and record on appeal.) In the case before us, the appellant carrier was not present at the hearing in question or otherwise on notice; but in view of the conclusion which we have stated we do not reach the problem—whether it be for the Legislature or for the courts — posed when the provision whereby the carrier is charged with the employer’s knowledge or notice (Workmen’s Compensation Law, § 54, subd. 2; Matter of Lambright v. St. Luke’s Hosp., 3 A D 2d 613, affd. 3 N Y 2d 832) is sought to be applied to a situation in which there exists the dual interest of a claimant who is also, in effect, the employer and when, for reasons of reimbursement or otherwise, the interests of employee and employer lie in the same direction and are at the same time adverse to the carrier’s interest.
Also untenable, in our view, is the board’s finding of an advance payment of compensation. “ To constitute the payment of compensation there is a minimal necessity that the employer shall have some knowledge of the effect of what he is doing and an award must have basis in substantial evidence of such knowledge. There must be * * * a recognition of
The decision should be reversed and the matter remitted to the Workmen’s Compensation Board, with costs to appellant carrier against respondent carrier.
Coon, J. P., Heblihy, Reynolds and Taylob, JJ., concur.
Decision reversed and the matter remitted to the Workmen’s Compensation Board, with costs to appellant carrier against respondent carrier.