Opinion
Argued February 26, 1918
Decided April 30, 1918
John Godfrey Saxe and Edwin D. Worcester for appellant.
Merton E. Lewis, Attorney-General ( E.C. Aiken of counsel), for respondent.
On May 5, 1916, Dennis E. Hynes wounded his finger with a tack while engaged as a car cleaner. He continued his work until May 11. By that time his finger and arm had become infected, but he reported to his employer in good faith that he had rheumatism. He later underwent several operations. He did not give written notice of the accident until July 28th.
Under these circumstances the commission finds that the employer was not prejudiced by the failure to give notice "for the reason that there was no one present when the accident occurred and, therefore, the employer could obtain no affirmance nor denial of the fact of the accident, and for the further reason that as soon as evidence of infection appeared, Hynes was under the care and attention of a duly authorized medical practitioner."
This court has already said that the written notice required by section 18 of the Workmen's Compensation Law (Cons. Laws, ch. 67) is not a mere formality to be dispensed with as a matter of course. The act is definite as to the powers of the commission. It may make no award in the absence of the notice unless for some reason it could not have been given, or unless the employer has not been prejudiced by the failure to give it. 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.)
Where, as here, the notice might have been given and is not, the ultimate fact upon which the award must rest is that the employer is not prejudiced. If such a general finding, supported by any evidence, is made, doubtless all the appellate courts are bound by it. The commission has a large and undefined discretion. This, the legislature intended to confer upon it. We may not assume that it will abuse its power. Unless it is honestly satisfied, after weighing all the probabilities, that no prejudice has been suffered, its duty will be to uphold the statutory bar.
If such a finding is made and is unanimously affirmed by the Appellate Division, the question as to whether it is supported by any evidence is not before this court. But no such finding has been made in the case before us. The facts are given upon which the ultimate conclusion is made to rest. Whether these facts support the conclusion is a question of law.
We do not think that they do. For more than two months the employer was not warned of the alleged accident or its alleged results. For that time he was deprived of the opportunity of investigating the claimant's story and of determining for himself the sequence of events, and whether the septicaemia from which the claimant suffered did, in truth, result from the scratch.
The logic of the commission seems to be as follows: Because the claimant tells the truth as to his accident; because no one was present to contradict him; because later blood poisoning developed and developed as a result of the injury; because a licensed physician attended him who was presumably competent, no investigation could have been useful to the employer. This is reasoning in a circle. Notice and consequent chance of investigation is given for the very purpose of enabling the employer to test the good faith of the claimant. Without it no contradiction is possible. If many are present at the time of the alleged accident; if their stories agree; if there is no doubt of the injury and its results, there may be a basis of the finding that lack of notice did no harm. But assume that the injury was so slight as not to cause attention at the time; that no physician was called for eleven days; that the accident is remembered only after the lapse of six or perhaps thirteen days; that blood poisoning may result from any slight prick, any scratch, any bite of an insect, then the absence of witnesses would seem to require rather than to excuse notice.
The order of the Appellate Division and the award of the commission should be reversed, and as all the facts were before the commission and were interpreted by it so as not to admit a recovery, the claim should be dismissed, with costs in all courts against the industrial commission.
The unanimous affirmance of the finding of the industrial commission that the employer was not prejudiced by the failure of the employee to give notice of injury is final. No question of law survives.
"A speculative and insubstantial suggestion of prejudice," as Lord SUMNER says in the Hayward Case ([1915] A.C. 540, 547-8) is not enough. It is not open to this court to conjecture that the employer, with notice, might have done something which would have changed the result. Prejudice means disadvantage. How and why did disadvantage arise in this case? Would other inquiries or other treatment have been to the employer's advantage? Looking at all the matters before it, the commission answers this question in the negative and finds that the employer is no worse off than it would have been with notice. The judgment appealed from should be affirmed.
HISCOCK, Ch. J., CHASE, COLLIN and CUDDEBACK, JJ., concur with ANDREWS, J.; POUND, J., reads dissenting opinion, and CARDOZO, J., concurs.
Order reversed, etc.