308 N.Y. 44 | NY | 1954
Lead Opinion
This is an unusual workmen’s compensation case, since here it is the permanently disabled workman who appeals from an order affirming an award to himself. Presumably, appellant, although he has actually received, from the carrier, payments of workmen’s compensation totaling $2,400
On March 9, 1950, just before 6:00 p.m., claimant, who had just “ checked out ” at the India Street Pier in Brooklyn, where he worked for respondent Federal, was walking past or near the “ Java Street Pier ” when he was run down and injured by some sort of crane belonging to, and operated by, his employer Federal. There is no testimony or documents in the record to show just what he was doing when hurt. Appellant never, at any time, filed a workmen’s compensation claim but, on the day after the accident, respondent Federal filed with the Workmen’s Compensation Board a report (see Workmen’s Compensation Law, § 110) of the injury. A few days later, the carrier, without awaiting action by the board (see Workmen’s Compensation Law, § 25), began paying claimant $32 per week and so notified the board on the usual form. On March 21, 1950, the employer, on the board’s form, sent in another report of injury (all these are routine procedures, and there is no showing of any fraud or bad faith). Both those reports of injury filed by the employer stated details as to the place and character of the accident and together they gave information that appellant had finished work and was walking nearby when he was hit. Then, and still before any action by the board, a series of physicians’ and hospital reports were filed with the board, which reports stated, as history given by appellant, that appellant was injured while working. On May 1, 1950, while compensation was still being paid (without award) and while claimant was still in the hospital undergoing treatment, there was sent by the board to claimant and to the employer and the insurance carrier, a notice of hearing, on a printed form which stated that it was not necessary for
As a basis for affirmance, it is suggested that claimant is estopped or concluded from questioning the compensation award since, in his suit against his employer (305 N. Y. 648, supra), it was held that he could not maintain a common-law negligence action because he had been awarded compensation. However, it may be that, while he could not, in a common-law suit, collaterally attack the compensation award which stood unreversed, he can, as he is now doing, attack it directly by appeal, so we will not further discuss that point.
Before reciting briefly the further steps taken in the workmen’s compensation proceeding, we point out that the foregoing leaves for us, on this appeal, one question only: that is, was there before the board sufficient evidence, or a sufficient showing of any kind, of an accident arising out of and in the course of
Between May, 1950, and May, 1951, successive notices were sent by the board to claimant, carrier and employer, in each instance stating that the board would, on a given date, make its decision directing the carrier to continue the payments, and in each instance the board did so. During all this time, the $32 per week payments were being made by the carrier. Before any appearance of any Idnd was made for claimant in any of these board proceedings, he commenced the common-law suit above referred to wherein a motion for summary judgment was made by Federal on the ground that plaintiff’s sole remedy was under the Workmen’s Compensation Law, which motion was denied at Special Term, but the order was reversed and the motion granted at the Appellate Division, and that summary judgment for defendant was, as aforesaid, affirmed in this court (Doca v. Federal Stevedoring Co., 305 N. Y. 648, supra). Another, and identical, suit was commenced and is now pending. The first appearance before the board by anyone on behalf of the injured man seems to have been on November 15, 1951 (apparently the fifth compensation hearing), while the first common-law suit was pending. An attorney for Doca came before the board and, in discussion there, it turned out that claimant had refused (in August, 1951) to accept further payments of compensation because of the pendency of his common-law suit, and because of his assertion that the case was not one for workmen’s compensation. Doca’s lawyer stated at the November, 1951, hearing that he did not wish any further award made, but asked that the matter be held in abeyance. There was another hearing on January 8, 1952, at which some unknown person asked that the findings be rescinded, but this person refused to give his name and the referee made a new award tip to date. In June, 1952, an attorney, who had a written authorization from appellant to appear specially before the board, appeared at a hearing and requested of the referee that
The real question is whether there was before the board, when it made its various awards, a sufficient showing, in any form, of an accident arising out of and in the course of employment. Technically, it may be that section 21 (“ that the claim comes within the provisions ” of the act) does not apply here since appellant never did, in fact, file a claim. On the other hand, the word “ claim ” seems to be used in compensation law to describe any proceeding before the board no matter how initiated, and there is no doubt that such a proceeding can be (see Meaney v. Keating, supra), and here was, instituted by notices from the employer. If the section 21 presumption can apply where no claim has been filed by the injured man, then this is a case where the presumption may properly be made use of since, for a period of more than a year, this appellant received and retained compensation payments and never appeared before the board despite many notices and despite express notice that the board was going to make, and did make, findings of compensable accident, etc. If the presumption does not apply, there is still basis, we think, for affirmance and for a holding that the board had sufficient ground for the making of its finding of compensable accident. It is the decisional law, of course, that, while hearsay evidence is admissible in compensation proceedings, there must be a residuum of common-law evidence (Matter of Carroll v. Knickerbocker, 218 N. Y. 435). However, that rule has no place here. It governs when the party against whom the
This is a tragic case of a permanently disabled young man taking a legally untenable position, but we must apply the law as we find it. We, of course, express no opinion as to his rights, before the compensation board, in.the future.
The order should be affirmed, with costs.
Dissenting Opinion
(dissenting). Claimant, a young man twenty-three years old, having completed his day’s work on March 9, 1950, cotieededly checked out and departed from the India Street Pier in Brooklyn where he worked as a longshoreman. While walking in front of the Java Street Pier, just before 6:00 p.m., he was run down and horribly maimed by a five-ton automobile crane owned and operated by his employer, and is totally incapacitated. Most of the time until July, 1951, claimant was con
Claimant never filed a notice of claim with the Workmen’s Compensation Board. But on March 10th, the very day after the accident, claimant’s employer, whose compensation insurance carrier and liability insurance carrier were the same company, promptly filed a report of injury and voluntarily commenced disability and medical payments. The board held several hearings on the claim, but at no time did it take any testimony or receive any evidence other than the employer’s two reports of injury and the several doctors’ reports. Nevertheless, despite this complete absence of any legal evidence, the board found that the accident had arisen out of and in the course of employment, thus confining claimant exclusively to his compensation remedies. Claimant, who desires to prosecute a common-law negligence action against his employer for acts not arising out of his employment, now directly attacks the board’s jurisdictional finding that a claim he never filed resulted from an accident which arose out of and in the course of his employment.
The board was in error when it stated that in Doca v. Federal Stevedoring Co. (305 N. Y. 648) this court held that it would not go behind the board’s finding of accident arising out of and in the course of employment; all that we held in that case was that the employer’s injury report and voluntary payment of compensation conferred an initial jurisdiction on the board which could not be collaterally attacked in a common-law action. However, on a direct appeal from the board’s decision, such as is now before us, a finding that the accident arose out of and in the course of employment, like any other finding of fact, may be sustained only if it is supported by substantial evidence.
Claimant’s failure to appear at the hearings is not evidence. His acceptance of compensation awards is not evidence. The presumption authorized by section 21 of the Workmen’s Compensation Law is not by itself evidence. None of these can be substituted for evidence. As for the hearsay reports, they can be given probative effect only if corroborated by a residuum of legal, or “ common law ”, evidence. (Matter of Altschuller v. Bressler, 289 N. Y. 463, 468-471; Matter of Carney v. General
The prevailing opinion asserts (without citation of authority) that the employer’s reports of injury, which we have held to be probative evidence against an employer on the jurisdictional issue, should be likewise regarded as against the employee. But such reports bind an employer because they are his admissions, and are therefore within a well-recognized exception to the hearsay rule. When offered against the employee, however, no such exception obtains, and the employer’s reports come within the salutary policy, as well as the letter, of the rule which deprives them of probative value.
Matter of Ahern v. South Buffalo Ry. Co. (303 N. Y. 545, affd. 344 U. S. 367) is not controlling here. In that case, the “ waiver ” was expressly authorized by section 113 of the Workmen’s Compensation Law which applies only when the New York State compensation award system might conflict or overlap with Federal compensation programs. In such a case, a party may waive his rights under the Federal program and rely solely upon the New York Workmen’s Compensation Law. By doing so he submits to the jurisdiction of the board. But there is no similar provision in our Workmen’s Compensation Law authorizing a waiver of a claimant’s common-law remedies against his employer; indeed, such a provision would often, as possibly in this case, confer an unauthorized jurisdiction on the board. In that case, moreover, the evidence showing the employer’s intent to waive his Federal rights was virtually indisputable. Such is not the case here.
Claimant maintains that the notices of hearings allegedly mailed to his home were never in fact received by him. It is true that the employer paid weekly compensation benefits, as well as some $14,000 on his medical bills. Claimant asserts,
The order of the Appellate Division should be reversed, the board’s order set aside, and the matter remitted for further proceedings not inconsistent with this opinion.
Lewis, Ch. J., Dye, Fuld and Van Voobhis, JJ., concur with Desmond, J.; Fboessel, J., dissents in an opinion in which Conway, J., concurs.
Order affirmed.