Matter of Veres v. Lumen Bearing Co.

Full title: In the Matter of the Claim of LOUIS VERES, Respondent, against LUMEN…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Sep 28, 1938

255 App. Div. 171 (N.Y. App. Div. 1938)

Opinion

September 28, 1938.

Appeal from State Industrial Board.

Benedict T. Mangano, for the appellants.

John J. Bennett, Jr., Attorney-General [ Leon Freedman, Assistant Attorney-General, of counsel], for the State Industrial Board, respondent.

RHODES, J.

Claimant was employed as a molder by the employer herein, and the Board has found that about June 16, 1937, while in his employment and while assisting in the lifting of a box of molds weighing about 350 pounds from a rack, he felt a burning sensation in his right groin and thereafter noticed a swelling; that he suffered an inguinal hernia by reason of which he was totally disabled for the period of the award. The Board further found that "Written notice of injury was not given to the employer within the time prescribed by section 18 Work. Comp. of the Workmen's Compensation Law, but the employer had actual knowledge of the accident and injuries within the statutory period, in that it filed an Employer's First Report of Injury, dated July 15, 1937, which was within the prescribed period."

Appellants assert that the failure to give written notice should not have been excused; however, the evidence sustains the finding that actual notice was given within the statutory period.

The serious complaint of the appellants herein is that the employer did not have a fair and impartial hearing. We agree with the appellants that the conduct of the referee herein was arbitrary and arrogant.

If the foundation of the award herein rested solely on the decision of the referee we would, because of his conduct, hesitate to affirm.

The matter, however, was reviewed before the Board and the appellants had full opportunity to present evidence and to be heard, after which the Board decided in favor of claimant. For this reason we have decided to affirm, notwithstanding our disapproval of the conduct of the referee.

For the reasons stated, the award herein is affirmed, with costs to the State Industrial Board.

HILL, P.J., CRAPSER, BLISS and HEFFERNAN, JJ., concur.

Award affirmed, with costs to the State Industrial Board.