267 A.D. 1007 | N.Y. App. Div. | 1944
Appeal by employer, the Prudential Insurance Company of America, and other appellant, the insurance carrier, from a decision and award of disability compensation. Claimant, an agent of the employer, sustained a head injury in an accident on December 31, 1937, while riding in an automobile owned and operated by another agent, one Fadale. On January 11, 1938, the employer duly filed a first and full report of the matter and stated that the accident and injuries befell claimant while in the course of his employment. Claimant filed no formal claim but on January 3, 1939, did file notice of election to sue Fadale. He did so and that action is pending. (See Campana v. Fadale, 263 App. Div. 1064 [March, 1942].) The first hearing on the claim was on January 23, 1939. All interested parties were present by representation. Ho objection was there raised to claimant’s failure to have filed his claim. On the day of his accident claimant received expert medical treatment furnished by the employer and, during the next two years, various medical and surgical treatments were furnished by the employer and carrier. During three periods of total disability, in 1938, 1939 and 1940, he received his regular salary. Such disability period in 1940 was seven weeks. Appellants presented no evidence in opposition to the claim. They now contend (1) that there was no sufficient evidence of the fact of the accident and injuries to claimant arising out of or in the scope of his employment; (2) that the pendency of the third-party action precluded the award, and (3) that jurisdiction to make it was lacking by reason of claimant’s failure to file his claim within one year after the accident. The employer’s report of the accident was competent evidence and had probative force. (Matter of Bollard v. Engel, 278 N. Y. 463, 466.) That, together with the medical and surgical
