178 A.D. 345 | N.Y. App. Div. | 1917
This is an appeal from a decision of the State Industrial Commission denying the application of the claimant to withdraw his claim for compensation so that he may proceed by action against the employer.
The claimant was injured December 9, 1915. The employer had not secured compensation to his employees as required by section 50 of the Workmen’s Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of
In the present case the claimant on February 20, 1916, more than two months after the accident, submitted to the Commission his first notice of injury in which he stated among other things that the employer had furnished him medical service at his request. Application for compensation was made March 14, 1916. On April 11, 1916, the Commission wrote the attorney of the claimant as follows: “ Supplementing our letter to you of April 4th, 1916, we wish to advise that on December 9, 1915, the Petroleum Iron Works of Pennsylvania, did not carry insurance as required by the Workmen’s Compensation Law of the State of New York.” The claim was heard April 17, 1916, by the Commission, and an award on that day was made in favor of the claimant and the claim continued for further hearing. On April twentieth payment of the award was tendered by the employer and refused by the claimant. On the following day, April twenty-first, the claimant filed with the Commission a statement that he withdrew his claim for compensation stating that it was his intention to prosecute his common-law remedy under the laws of this State. This notice although not filed with the Commission until April twenty-first, was dated April fourteenth, three days before the claim was heard by the Com
With full knowledge of the situation, therefore, before an award was made and with competent counsel to guide and advise him, the claimant permitted an award to be made in his favor and thereby most effectually confirmed his election to accept such remedy as was afforded him by the Workmen’s Compensation Law. There is no pretense that he did not fully understand his rights before the award was made. A party cannot experiment with the Commission for the purpose of ascertaining how much compensation may be awarded bim and then if dissatisfied repudiate the award and seek the other remedy permitted by the statute. His election once made intelligently and with knowledge of the facts should be conclusive. The Commission was clearly right in denying the application to discontinue the claim.
Decision unanimously affirmed.