Summary
In Matter of Carbino v De Grasse Paper Co. (209 App. Div. 627, 629) it was noted that as to the issue of whether or not an employer had been prejudiced by a failure to give timely notice, the question is one of discretion for the board and it does not have to make any specific findings.
Summary of this case from Matter of Newmark v. H.M. Stevens, Inc.Opinion
June 27, 1924.
Frank W. Baker, for the appellant.
Carl Sherman, Attorney-General, for respondent State Industrial Board.
E.C. Sherwood [ William B. Davis of counsel], for the respondents employer and insurance carrier.
The State Industrial Board has found that the claimant sustained injuries arising out of and in the course of his employment as a fire cleaner by the DeGrasse Paper Company, respondent, in that while hoeing out red hot coals from the rear of a furnace in the plant of his employer, a fellow-employee turned water on the hot coals thereby causing a large cloud of hot steam to arise from which claimant sustained injuries in the nature of burns on his hands and face and right eye, disabling claimant. The State Industrial Board, however, denied an award of compensation to the claimant on the ground that he failed to give written notice to the employer of the accidental injury and that the employer had no knowledge of the accident within thirty days thereafter.
The sole question is one of notice. The Workmen's Compensation Law provides: "Notice of an injury for which compensation is payable under this chapter shall be given to the Commission and to the employer within thirty days after the accident causing such injury * * *. The notice shall be in writing * * *. The failure to give notice of injury * * * unless excused by the Board either on the ground that notice for some sufficient reason could not have been given, or on the ground that the employer, or his or its agents in charge of the business in the place where the accident occurred or having immediate supervision of the employee to whom the accident happened, had knowledge of the accident, or on the ground that the employer has not been prejudiced thereby, shall be a bar to any claim under this chapter, but the employer and the insurance carrier shall be deemed to have waived such notice unless the objection to the failure to give such notice or the insufficiency thereof, is raised before the Board on the hearing of the claim filed by such injured employee, or his or her dependents." (Workmen's Compensation Law, § 18, as amd. by Laws of 1918, chap. 634, and Laws of 1922, chap. 615.) The statute thus provides positively that "unless excused by the Board" the failure to give the written notice of injury shall be a bar to any claim. The statute contemplates that the granting of such an excuse shall rest with the Board. The Board has refused to excuse the failure to give the written notice. The claimant concedes that no written notice of injury was given to the employer within thirty days after the accident. It is the contention of the claimant that the employer had actual knowledge of the accident through its superintendent, foreman and immediate superior to the claimant. If this court were to reverse the decision of the Board, the excusing of the failure to give notice would be the act of this court, which is not contemplated by the statute. It is a discretion which is vested in the State Industrial Board and even the decision of the Board in granting such an excuse must rest upon evidence bringing the case within the provisions of the statute. ( Matter of Hynes v. Pullman Co., 223 N.Y. 342, 345.) The burden rests upon the claimant who has been guilty of the default, to show the facts and secure a finding that entitles him to an award. ( Matter of Bloomfield v. November, 223 N.Y. 265, 268.) On the question of whether or not the employer did have knowledge of the accident through its superintendent, foreman and immediate superior to the claimant, it does not appear that the superintendent had any knowledge of the accident until several months thereafter and the foreman and immediate superior to the claimant contradicted the testimony of the claimant and of his witnesses as to having any knowledge of the accident within the thirty-day period. Upon this issue of fact the decision of the Board is binding upon this court. The claimant also urges that it has been clearly shown that the employer was not prejudiced by his failure to give written notice of the accident. This is a question, however, which is addressed to the discretion of the State Industrial Board and one which cannot be decided by this court. The mere fact that the Board has not made a specific finding as to prejudice is likewise unavailing upon appeal to this court. The burden of proof rested upon the claimant to show the facts and secure a finding of lack of prejudice from the Board. ( Matter of Bloomfield v. November, supra.) The necessary inference from the failure of the Board to make such a specific finding is that it has refused to excuse failure to give notice upon that ground; and in the absence of the granting of such excuse, the claim is barred under the statute.
The only other question under section 18 of the Workmen's Compensation Law, above quoted, is whether there has been any waiver of such written notice by failure to raise the objection before the Board on the hearing of the claim. This objection was, however, raised before the Board at the hearing by the insurance carrier. It is not necessary that this objection should be raised by both the employer and the insurance carrier. The statute is satisfied if the objection is "raised before the Board." ( Matter of Cheesman, 236 N.Y. 47, 50.)
The decision of the State Industrial Board should be affirmed.
Decision of the State Industrial Board unanimously affirmed, without costs.