Opinion
March 20, 1952.
Appeal by employer and its insurance carrier from an award of compensation. During a routine periodic physical examination by a physician, employed by the employer, claimant was found to be suffering from a left inguinal hernia. He was advised by this physician to obtain a truss. The award herein is opposed on the ground that claimant filed no claim for compensation and that no notice of any kind was given to the employer until March 29, 1950. The board found that claimant became disabled as a result of the hernia on October 10, 1947. The board excused the failure of claimant to file a written claim on the ground that the employer had supplied medical treatment and that this constituted an advance payment of compensation within the meaning of the Workmen's Compensation Law. The finding of the board in this regard is tenuous, but we cannot say that it is erroneous as a matter of law. However, there is no proof in the record to sustain a finding that claimant's disablement was a result of his occupation. If such is the fact, proof in that regard should be easily obtainable. Award reversed on the law and matter remitted to the Workmen's Compensation Board, with costs to appellants. Foster, P.J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., dissents.