169 A. 784 | Vt. | 1934
The claimant was employed by defendant in August, 1927, in clearing a right of way for a telephone line. In cutting the limbs from a tree he had felled a sapling which was bent over by the tree in its fall, was released, flew back, and hit him in the left eye. He suffered severe pain at the time and worked no more that day. Later in the day he told one Bugbee, who was in the employ of defendant and had charge of said work, about the injury, gave him a detailed account of how it happened, and Bugbee inspected the eye. Bugbee acknowledged that claimant had received quite a blow, and told him that he might have to lay off for a while. Bugbee also told claimant at that time to see a doctor. Claimant did so that night, but did not see one again until February, 1931. In the meantime the sight of that eye (he had previously lost the sight of the other) gradually diminished until he was unable to get about the street without assistance, or the use of a cane to find his way. In February, 1931, he consulted an eye specialist and learned that he had a cataract, but that it was not far enough advanced to be removed. It was removed February 27, 1932. Claimant went to work at his regular employment the morning following *46 the accident and worked continuously thereafter until the right of way was cleared, September 1, 1927, when his services for defendant terminated. He did not say anything to Bugbee about his injury after the day it happened until October, 1930, when he called him by telephone and told him that he was having a great deal of trouble with his eye and was practically blind. He did not give defendant written notice of the injury or make claim for compensation until June 28, 1932, when he gave it written notice of both. He was unable to give any reason why he could not have done this before. He offered no evidence to show that defendant was not prejudiced by want of or delay in giving such notice.
The commissioner has certified several questions for review pursuant to G.L. 5808, but, in effect, all except the seventh, raise the single question of whether, on the foregoing facts, he has jurisdiction in these proceedings.
The defendant contends that to give the commissioner jurisdiction it was necessary for claimant to show (1) full compliance with the requirements of G.L. 5796 and 5797; or (2) a claim for compensation within a reasonable time after the expiration of the time fixed by statute; or (3) that it had knowledge of the injury and had not been prejudiced by the failure of claimant to make claim for compensation earlier than he did. The claimant insists that the facts shown gave the commissioner jurisdiction.
G.L. 5796, so far as here material, provides: "A proceeding under the provisions of this chapter for compensation shall not be maintained unless a notice of the injury has been given to the employer as soon as practicable after the happening thereof, and unless a claim for compensation with respect to an injury has been made within six months after the date of the injury." G.L. 5797 provides that such notice and claim shall be in writing; what information the notice shall contain, by whom signed, etc. G.L. 5798 provides to whom, and how, notice of injury and claim for compensation shall be given. G.L. 5799, as amended by No. 101 of the Acts of 1925, provides that a notice given under section 5796 shall not be held insufficient because of certain inaccuracies unless it is shown that the employer was in fact misled to his injury thereby, and further that: "Want of or delay in giving such notice, or in making such claim, shall not be a bar to proceedings under the provisions *47 of this chapter if it is shown that the employer, his agent or representative, had knowledge of the accident or that the employer has not been prejudiced by such delay or want of notice." The italics are ours, and indicate the words added to the original statute by the amendatory act.
We held in Patraska v. National Acme Co. et al.,
In Dorney's Case,
In Gaffer's Case,
The above cases are authority for holding that claimant has the burden of showing either that the employer had knowledge of the injury or that it was not prejudiced by want of or delay in claimant's giving notice thereof or in making claim for compensation, but that he need not show both.
It was held in Walkden's Case,
The seventh question certified by the commissioner is whether the evidence fairly and reasonably tends to show that Bugbee's relations to defendant were such that notice to or knowledge by him was knowledge by defendant. This question is not briefed by either party, but is left for determination in the event that the case goes back for further evidence; neither has the evidence already in been furnished us. Such practice does not merit or receive the approval of this Court. The parties are here to find out whether the commissioner has jurisdiction; yet they have failed to present one of the most essential elements bearing on that question. If defendant did not have the requisite knowledge, claimant, on the findings, cannot maintain these proceedings. We may add further that, except for the importance of the question submitted, it would not have been considered, since we know of no authority for sending cases of this nature to this Court before an award has been made. It is a plain violation of the long-established rule that we will not hear cases piecemeal. That we have considered this case, in the circumstances, is no indication of an intention to depart from that rule.
Cause remanded to the commissioner of industries for suchfurther proceedings as the parties may be advised. *50