Opinion
September 22, 1943.
The right of the employee to receive and be paid compensation is undisputed. The question here is which one of two responsible funds of carriers shall make such compensation payment to the employee. No question is raised as to the amount to be paid to the employee. The accident happened on May 1, 1942. The appellant had issued to the employer a workmen's compensation policy which was in full force and effect. The State Insurance Fund had issued a binder to the employer, effective at 12:01 A.M., on May 1, 1942. It is conceded that the State Insurance Fund afforded coverage to the employer on May 1, 1942, at the time of the happening of the accident. On May 8, 1942, the appellant sent a formal notice of cancellation of its policy of insurance to the employer, notifying it that it would be canceled on May 18th. At the time of the accident, both the policy of the American Lumbermens Mutual and the binder of the State Fund were in full force and effect. The Industrial Board on the foregoing facts properly found that there was dual coverage. Among other things, subdivision 5 of section 54 Work. Comp. of the Workmen's Compensation Law provides: "Provided, however, that if the employer has secured insurance with another insurance carrier which becomes effective prior to the expiration of the time stated in such notice, the cancellation shall be effective as of the date of such other coverage." At the time the binder was issued by the State Fund the American Lumbermens Mutual had made no attempt to cancel its policy. If it had given notice on May 1st, under those facts then the date of cancellation would have been advanced, but having waited until May 10th, the provisions of subdivision 5 of section 54 are not of assistance to it. The award against both carriers should be affirmed. Award unanimously affirmed, with costs to the State Industrial Board. All concur. [See post, p. 936.]