Opinion
January 13, 1943.
Appeal from State Industrial Board.
The employer was engaged in the cattle business and the deceased was employed as a cattle salesman. On or about May 1, 1939, while engaged in his regular occupation in the cattle pen at the employer's stockyards, the decedent was kicked by a cow in the right groin, knocked against the fence and thrown to the ground. As a result, among other injuries he was caused to suffer a phlebitis of the right leg. By reason of the phlebitis, a particle of degenerative tissue became detached, passed through the blood stream and caused a pulmonary embolus which in turn caused his death on July 14, 1939. Following the accident, decedent was temporarily disabled and continued to experience symptoms of soreness and pain. He was not aware of the seriousness of his injuries and gave little thought thereto. He had always enjoyed excellent health. He filed no claim for compensation as he lost substantially no time from work. He did not wish to worry his wife who was ill, and his death was sudden without prolonged illness. After his death the widow received an intimation that the decedent had suffered an injury and considerable time was expended in ascertaining and investigating the facts in connection therewith. On October 28, 1940, the widow filed a claim for death benefits, which was within one year and three months after the death of the decedent. The first hearing of the claim was held on November 22, 1940. Extensive evidence supporting the claim was introduced at this hearing and at a subsequent hearing held on December 26, 1940. The testimony of several witnesses was produced by the dependents, including the testimony of two doctors. The proof introduced by the dependents at those two hearings comprises over one hundred pages in the record on appeal. No objection whatever was interposed by the appellants relative to the failure to file a claim within one year. Neither at the first hearing on November 22, 1940, nor the second hearing on December 26, 1940, did the appellants raise the question or utter the slightest suggestion that such issue would be raised, although at both hearings all parties in interest were present. Section 28 Work. Comp. of the Workmen's Compensation Law provides that "the right to claim compensation under this chapter shall be barred, except as hereinafter provided, unless within one year after the accident, or if death results therefrom, within one year after such death, a claim for compensation shall be filed with the commissioner, but the employer and insurance carrier shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within one year is raised on the first hearing on such claim at which all parties in interest are present." There is no question about the language of section 28 requiring the raising of the objection on the first hearing. It requires that all parties in interest must be present. It is mandatory in character and oral objection must be made at the first hearing or the employer and carrier will be deemed to have waived it. Section 25 Work. Comp. of the Workmen's Compensation Law prescribes that in case the employer decides to controvert the right to compensation, he should file a notice with the Industrial Commissioner that compensation was not being paid, giving the name of the claimant, the name of the employer, the date of the alleged accident and the reason why compensation was not being paid. Nothing in section 25 provides that this notice as provided for shall be served on the parties in interest, and claimants would not have notice of filing such claim because provision is not made for service upon them. Filing of such notice with the Industrial Board cannot take the place of the objection that is required to be made under section 28 Work. Comp. of the Workmen's Compensation Law. In this case such a notice was filed under section 25 but no objection was taken under the provisions of section 28, and, therefore, by failure to make objection under section 28 the appellants waived the issue that the claim was not filed timely. Claim for compensation as filed was dated October 28, 1940, and the employer's first report of injury was dated November 18, 1940. In the employer's report of injury it was claimed that the employee was kicked by a steer but did not give any report of his accident. The award appealed from should be affirmed with costs to the State Industrial Board. Award affirmed, with costs to the State Industrial Board. Hill, P.J., Crapser, Heffernan and Schenck, JJ., concur; Bliss, J., dissents upon the ground that at the time of the first hearing there was on file with the Industrial Commissioner, and therefore before the referee and all parties, written notice that the carrier was controverting the case upon the ground that the notice of claim was not filed within the statutory period. This was ample compliance with section 28 of the statute and there was no waiver by the carrier of this objection.