188 A.D. 385 | N.Y. App. Div. | 1919
The only question necessary to be considered here is whether the failure of the claimant to file a claim within the period of one year from the time of the accident may be disregarded upon the theory that the employer, by continuing the employee in its service, worked an estoppel. On the - 15th of November, 1917, the State Industrial Commission made an award to John M. O’Esau, holding that the employer and insurance carrier were estopped to urge the provisions of section 28 of the Workmen’s Compensation Law. (O’Esau v. Bliss Co., 14 State Dept. Rep. 696.) From this award an appeal was taken to this court, and at the March term in the year 1918 (not reported) it was urged that a certain letter, dated October 22, 1916, operated as a claim under the act. The case was sent back to the Commission to make such findings as it should find proper, and it was then held that the letter in question constituted a claim, and an award was made. A further
“ 2. * * * Said injuries soon incapacitated him from doing his former work but his employer retained him in the capacity of foreman, or overseer, and at the rate of wages earned prior to said accident. He was kept at work by his employer from the date of said accident to April 30, 1917, on which latter date he was discharged. From the date of said accident to April 30, 1917, during which time his employer retained him in a supervisory capacity, John M. O’Esau lost but three weeks on account of said injuries, and from the date of said accident to June 16, 1916, his employer furnished him with medical attention at the clinic located at the employer’s plant.
“ If he had not been retained by his employer as a foreman, or overseer, he would have been disabled from working from practically the date of said accident to November 15, 1917. Having been discharged by his employer on April 30, 1917, so far as a loss of wages is concerned, he was actually disabled from April 30, 1917, to March 21, 1918, the date of his death.
“ 3. John M. O’Esau filed with this Commission a claim for compensation on June 6, 1917, which was more than one year after the date of the actual injury received, but less than one year from the date of actual disability.
“ 4. The conduct of the employer, in view of all the circumstances, and particularly in keeping the claimant employed up to April 30, 1917, for a period of more than a year after the date of said accident, at a rate of wages equal to the wages earned prior to said accident, and in furnishing medical attention for the period required by the Compensation Law, directly induced the claimant to delay in filing
Upon these findings of fact the Commission decided that the “ employer and insurance carrier are alike estopped to plead the Statute of Limitations in respect to the failure of the claimant to file his claim within one year after the injury, since, by the conduct of the employer, whether fraudulent or not, it has directly induced the plaintiff to delay in filing his claim for compensation with the Commission until after the expiration of one year from the date of said accident.”
Section 18 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41)
The rule is thoroughly well established that where a statute gives a right unknown to the common law, and limits the time within which an action shall be brought to assert it, the statutory limitation measures the extent and qualifies the nature of the right conferred. (Dailey v. N. Y., O. & W. R. Co., 26 Misc. Rep. 539, 540; The Harrisburg, 119 U. S. 199; Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10; Hill v. Supervisors, 119 id. 344, 347.) In the latter case the court say that where the statute creates a new cause of action “ the limitation of time is so incorporated with the remedy given as to make it an integral part of it, and the condition precedent to the maintenance of the action at all.” (Rosin v. Lidgerwood Manufacturing Co., 89 App. Div. 245, 253.) “ The right to claim compensation under this chapter shall be forever barred,” says the statute, “ unless within one year after the injury * * * a claim for compensation thereunder shall be filed with the Commission.” This is clearly a jurisdictional fact; without the filing of the claim within one year from the injury the Commission is powerless to act, because the right to “ claim compensation ” has been forever barred, and even the State Industrial Commission may not revive that claim sufficiently to give it jurisdiction to apply the doctrine of estoppel. What a court of law or of equity might do in a case coming within the scope of an estoppel, which always involves the element of fraud or something which operates as a fraud (Wilmore v. Flack, 96 N. Y. 512, 520), it is not necessary now to inquire. The claimant worked for the employer for many months after the accident, during all of which time he was in the possession of all his mental faculties, as we must assume. He was bound to know the law, and this law required, as a condition precedent, that he should file his claim within a period of one year from the date of the accident. Having failed to do this the “ right to claim compensation under this chapter” was at an end; it was beyond the jurisdiction of the State Industrial Commission, and its holding that the employer and insurance carrier were estopped is utterly without force or effect. No evidence of fraud appears in the record; the employer furnished the claimant with work which he could
The award appealed from should be reversed and the claim dismissed.
All concurred.
Award reversed and claim dismissed.
Since amd. by Laws of 1918, chap. 634;— [Rep.
