144 N.E. 482 | NY | 1924
Claimant, an employee of the Eastman Kodak Company, was hurt on October 19, 1915, by the breaking of a chair which threw her to the ground. Her proof of claim under the Workmen's Compensation Act was filed at Albany in the office of the state industrial commission, now the state industrial board, on October 20, 1916, but there is evidence that it was delivered at a branch office in Rochester on October 19. Shortly thereafter she sued her employer in the Supreme Court to recover damages for the injury, her position then being that the nature of her employment did not bring her within the class of employees covered by the act. On February 10, 1917, there was a hearing before one of the deputy commissioners. The employer gave written notice of objection to the allowance of the claim on the ground that it had not been filed within one year after the injury was suffered, but offered to withdraw the objection if the claimant would discontinue the action for the recovery of damages. This she refused to do, but asked leave on the contrary to be permitted to withdraw her claim. On the same day the deputy commissioner made an order accordingly. The order is that the claim shall be withdrawn, and the proceeding "closed and of the same effect as though the claim had not been filed." This order was confirmed by the commission, and notice given to the employer.
The employee, having thus withdrawn her claim for compensation under the statute, proceeded with her action. She recovered a judgment, but the Appellate Division reversed it, and dismissed the complaint (
Upon the facts exhibited in this record the state industrial board was without power to revoke the discontinuance and reinstate the claim. Its action nullified the statutory requirement that a claim must be filed within one year after the injury is suffered (Workmen's Compensation Law [Cons. Laws, ch. 67], § 28). We assume, without deciding, that there was a filing with the commission on October 19, 1916, when the claim was left with an examiner in the Rochester office. On that assumption the claimant would have been in time if she had continued the proceeding then begun. The difficulty is that it was withdrawn and discontinued. For nearly five years no claim in behalf of this employee was pending upon the files of the commission or its successor. A new claim would have been too late if presented for the first time in November, 1921, when the rehearing was demanded. The bar was then complete and the remedy extinguished. In vacating the order of withdrawal the board has attempted through the fiction of relation to make continuous in law what was discontinuous in fact.
Section 123 (formerly section 74) of the act is invoked by the employee and the board in support of this relief. "The power and jurisdiction of the department over each case shall be continuing, and it may, from time to time, make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just" (Workmen's Compensation Act, § 123). We have given a broad reach *146
to these provisions in decisions heretofore announced (Matter ofSmith v. McKesson Robbins, Inc.,
In thus holding we do not suggest that a claim may not be revived if a discontinuance has been procured by fraud (Weisguth v. Supreme Tribe,
The order of the Appellate Division and the award of the state industrial board should be reversed and the claim dismissed, with costs against the state industrial board in the Appellate Division and in this court.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Order reversed, etc. *147