190 A.D. 824 | N.Y. App. Div. | 1920
Lead Opinion
The State Industrial Commission has found that on the 14th day of April, 1915, William H. Wright, claimant’s intestate, received injuries at the plant of the Brooklyn Union Gas Company which resulted in his death on the 5th day of January, 1919. Supplemental to this finding is one that the decedent, while engaged in the regular course of his employment during October, 1918, fell and aggravated the previous
But the State Industrial Commission, after finding these alleged injuries, and finding likewise that no notice had been given of the alleged injury, either by the employee himself during his lifetime or by his widow after his death within the time limited by the statute, does not hesitate to find that “ inasmuch as the employer had knowledge of the injury and furnished medical aid and attention, the employer was not prejudiced by such failure.” The only matters in the record which show that the employer furnished any medical aid and attention are in connection with the alleged accident of 1915,
Section 28 of the Workmen’s Compensation Law provides that “ the right to claim compensation under this chapter shall be forever barred unless within one year after the injury, or if death result therefrom, within one year after such death, a claim for compensation thereunder shall be filed with the Commission.” The injury which is said to have been the direct cause of the death occurred on the 14th day of April, 1915. On the 3d day of April, 1916, the same person gave a notice of injury, described as “ drilling hole in piece of iron, became sick from gas in blacksmith shop,” and the result is described as “ slight attack of gas asphyxia,” and no mention is made of any alleged injury which is now given as the cause of death. On the 14th day of April, 1916, the period of one year had elapsed from the date of the original injury. The alleged injured man was at work for the same employer and had neither given notice of his alleged claim under the provisions of his supposed injury, nor had he filed any claim in respect thereto. He was clearly, during his lifetime, the only person having an interest in the alleged claim, and the statute provides that such a claim “ shall be forever barred unless within one year after the injury ” a, claim shall be presented to the Commission. During a period of one year the injured man, if living, had the exclusive right to file a claim. If he had done so and an award for the comparatively unimportant injury had been
The contract of insurance was at an end when the injured man made no claim within the year limited by the statute. For any injury subsequent to that time a new contract arose by operation of law, and compensation for such second injury depended upon giving the notices provided by section 18 of the Workmen’s Compensation Law (as amd. by Laws of 1918, chap. 634), or upon facts and circumstances connected with such second injury as would justify a conclusion that the insurance carrier (in this case the employer) was not prejudiced because of a failure to give such notice. No medical attention is shown to have been furnished in connection with the alleged second accident. Indeed it is most uncertain whether any such accident ever occurred under circumstances which in any manner involved the employer, and no attempt is made to show that the employer had any notice whatever of this alleged second accident. The only notice, constructive, inductive or otherwise, is in connection with the accident of April 14, 1915, and as to this the claimant’s intestate permitted it to pass without notice, not only for one year but for nearly four years. By what process of reasoning it may be held that the employer was not prejudiced
We do not think the award is justified under the letter or the spirit of the act, and it should be reversed.
■All concur, Cochrane and H. T. Kellogg, JJ., in the result on the ground that the findings as to the injuries and cause of death are not supported by the evidence, except John M. Kellogg, P. J., who dissents, with a memorandum.
Dissenting Opinion
There was evidence tending to establish that the death was the result of the accident; that the employer had knowledge of the injury and due notice of death, and we are precluded from questioning those findings of fact. By section 18 of the Workmen’s Compensation Law compensation cannot be awarded unless notice is given by the injured employee within thirty days after the accident, and death benefits cannot be allowed unless the widow, or party claiming them, gives notice within thirty days after the death. The accidental injury is the basis for compensation. Such injury, and resulting death, are the basis for death benefits. They are separate and different rights, with separate and different remedies. The wife cannot give notice as a basis for death benefits during her husband’s lifetime. Neither of them can, by action or inaction, destroy the rights and remedies of the other. I favor an affirmance.
Award reversed and matter remitted to the Commission.