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Huffman & Co., 21 S. D. R. 380, 5 Bul. 24, Oct. 29, 1919. The Commission had awarded death benefits to Lutz's widow two weeks before its denial of them to Castor's widow. Commissioner Sayer's opinion has also been quoted above, page 23.

B. OPERATION OF AMENDMENTS TO 8 18 Workmen's Compensation Law, $ 18, requires and regulates notice of accident by the injured employee to his employer and to the Commission. The radical amendments of g 18 by Laws of 1918, ch. 634, especially the amendment which makes knowledge of the accident on the part of the employer within the prescribed period of days an excuse for failure of the employee to give notice of it, have tended to relegate the vexed question of notice to the background. The amendments apply to accidents occurring subsequent to May 13, 1918. In seven or eight such cases of accident in which the employer has raised the question of notice, the Appellate Division has either affirmed the award or has reversed it upon grounds other than want of notice. In only three cases has the want of notice been subject of opinion. In two of these the court has affirmed the award, in the third reversed it. In the first case the court based its affirmance upon the evidence that the injured employe's foreman had knowledge of the accident within thirty days after its occurrence. Its opinion was as follows:

GIBBONS V. CONTINENTAL IRON WORKS, 190 App. Div. 35, Dec. 29, 1919.

LYON, J.: The ground of this appeal is that no notice of injury was given the employer within the time prescribed by the Workmen's Compensation Law ($ 18, as amended by Laws of 1918, chap. 634), and that it and the insurance carrier were prejudiced by such failure.

The Continental Iron Works, doing business at West and Calyer streets, in the city of Brooklyn, N. Y., was engaged in the manufacture of furnaces for ships. The claimant was employed by them as an air chipper, that is, as an operator of a machine controlled by air, the hammer of which chipped the scale from the furnaces. On December 16, 1918, a piece of metallic compound consisting of steel and coke, came off the furnace upon which the claimant was working, and flew into his left eye. The next morning one of the workmen took a small piece of steel from the eye. During the following two days he worked he had a patch over his eye which the foreman noticed, but did not think it was necessary to then go over and ask him about it, but that night the foreman inquired of him about his eye. The second day after he told the foreman that he did not know but he had something in his eye and must go and see about it. The foreman testified that he said he must

have got it from the furnace while he was working. That is a frequent occurrence there. After treatment for a week and the eye growing worse he was recommended to a specialist who sent him to a hospital, where it was found necessary to remove the eye. A mixture of 50 per cent steel and coke was taken out.

The foreman testified that the claimant did not speak of it as an accident until he came out of the hospital, two months afterward, February 13th. About three or four weeks after the injury, the foreman testifies that he asked claimant's brother: “What is the matter with your brother, he don't show up.” He said: “ There was something in his eye,” that he got a piece of scale in his eye while in the shop, and that "he was in the hospital having an operation performed on his eye.” The foreman did not report it because he thought it was not necessary. The brother testifies that he told the fore. man within thirty days from the happening of the accident. As the steel went through the eye, nothing could be done for the eye. He went first to the Brooklyn Eye and Ear Infirmary, then to the New York Eye and Ear Infirmary. The State Industrial Commission found that the failure of the claimant to give written notice of the accident did not prejudice the appellants, and excused the failure to give such notice upon that ground. There is evidence to support such finding.

The appeal is also upon the ground that the daily wage was excessive. Appellant does not mention the point in his brief, so we assume that he has abandoned it.

The award of the Commission should be affirmed. Award unanimously affirmed.

In the second case the court affirmed the award without majority opinion but with minority opinion, as follows: KAVENAUGH V. GENERAL ELECTRIC Co.,

App. Div. -, May 5, 1920. KILEY, J. (dissenting): On November 15, 1918, the claimant, while at work for the appellant claims to have injured his back while lifting a heavy coil of wire says he heard or felt something snap in his back in lumbar region; that he felt dizzy and weak and was unable to do anything for several minutes; he continued to work until about February 25th, 1919, when he was unable to work longer. Whether claimant received his injury at that time and in the way he claims to have received it, was a question of fact passed upon adversely to the appellant, and under section 20 of the Compensation Law, the decision is final and binding upon this court. The difficulty confronting the claimant is under the provisions of section 18 of the Compensation Law: Notice of injury is required to be given employer in writing, or if a cor. poration, as in this case, such notice must come to the employer in such a way that the employer will not be prejudiced because of the omission of the written notice. The only notice given the employer of claimant's injury which is claimed to comply with the provisions of the statute, is that claimant told the assistant foreman about the snapping in his back and his subsequent dizzy feeling; that he did not know or think of the injury and had no intention of giving a notice upon which he was to predicate a claim for compensation. He continued to work until February 25, 1919, and said noth

ing about the incident, after the day it occurred, to any one connected with his employer. Under adjudicated cases in this court and the Court of Appeals such notice would seem to be insufficient. (Bloomfield v. November, 180 App. Div. 240, affirmed in 223 N. Y. 265.) The amendment to the Workmen's Compensation Law took effect May, 1918. This injury occurred November, 1918.

The award should be reversed and claim dismissed.

In the third case, the court based its reversal of the award and remittal of the proceeding to the Commission both upon failure to file a claim and upon prejudice to the employer for want of notice and knowledge. Full text of its opinion is as follows:

WRIGHT V. BROOKLYN UNION GAS Co., 190 App. Div. 824, March 3, 1920.

WOODWARD, J.: The State Industrial Commission has found that on the 14th day of April, 1915, William H. Wright, claimant's intestate, received injuries at the plant of the Brooklyn Union Gas Company which resulted in his death on the 5th day of January, 1919. Supplemental to this finding is one that the decedent, while engaged in the regular course of his employment during October, 1918, fell and aggravated the previous injury which he sustained on the 14th of April, 1915, and that “as a direct result of the injury which he sustained in the regular course of his employment on April 14, 1915, together with the injury which he sustained in October, 1918, William H. Wright died on January 5, 1919, the cause of his death being cellulitis of the thigh and left leg.” The initial injury was found to be "a contusion and lacerated wound upon the cross of the left tibia midway between the ankle and knee, with lacerated periosteum, of the left leg. The periosteum is that membrane of the fibrous connective tissue which closely invests all bones except at the articular surface, according to Webster, so that we find the initial injury in 1915 was of a relatively serious nature, but confined to the leg below the knee, while the alleged fall in October, 1918, aggravating the injury of 1915, and which is alleged to have caused death, is described as producing " cellulitis of the thigh and left leg.” Turning again to Webster we find that cellulitis is “an inflammation of the cellular or areolar tissue, especially of that lying immediately beneath the skin,” but there is no finding that this was such disease or infection as may naturally and unavoidably result" from the alleged accident of 1915. (Workmen's Compensation Law, § 3, subd. 7, as amended by Laws of 1917, chap. 705.) What relation an injury to the shin bone can have to an alleged injury of the thigh more than three years after the initial injury, without any attempt to establish an infection, is more than we are able to discover, particularly as it appears from this record that the claimant's intestate, while filing a notice of injury, alleged to have been sustained in March, 1916, makes no claim during his lifetime for the alleged injury of 1915, or makes any complaint in respect to it.

But the State Industrial Commission, after finding these alleged injuries, and finding likewise that no notice had been given of the alleged injury, either by the employee himself during his lifetime or by his widow after his death

within the time limited by the statute, does not hesitate to find that "inasmuch as the employer had knowledge of the injury and furnished medical aid and attention, the employer was not prejudiced by such failure.” The only matters in the record which show that the employer furnished any medical aid and attention are in connection with the alleged accident of 1915, which appears to have been of such a trifling nature that the injured man himself never thought it worth while to make a claim for compensation, though he survived the alleged injury nearly four years, but a matter of this character, notwithstanding the admonition of the court in Matter of Bloomfield v. November, 219 N. Y. 374, is of slight importance when it comes to an award of compensation. There is no evidence of any knowledge on the part of the employer of any alleged accident in October, 1918, and the finding of the State Industrial Commission is that as a direct result of the injury which he sustained in the regular course of his employment on April 14, 1915, together with the injury which he sustained in October, 1918, William H. Wright died on January 5, 1919,” the “cause of his death being,” not the injury to the shin, but “cellulitis of the thigh and left leg,” which is not shown to be the result of an infection from the original injury.

Section 28 of the Workmen's Compensation Law provides that “the right to claim compensation under this chapter shall be forever barred unless within one year after the injury, or if death result therefrom, within one year after such death, a claim for compensation thereunder shall be filed with the Commission." The injury which is said to have been the direct cause of the death occurred on the 14th day of April, 1915. On the 3d day of April, 1916, the same person gave a notice of injury, described as “drilling hole in piece of iron, became sick from gas in blacksmith shop," and the result is described

slight attack of gas asphyxia,” and no mention is made of any alleged injury which is now given as the cause of death. On the 14th day of April, 1916, the period of one year had elapsed from the date of the original injury. The alleged injured man was at work for the same employer and had neither given notice of his alleged claim under the provisions of his supposed injury, nor had he filed any claim in respect thereto. He was clearly, during his lifetime, the only person having an interest in the alleged claim, and the statute provides that such a claim “shall be forever barred unless within one year after the injury” a claim shall be presented to the Commission. During a period of one year the injured man, if living, had the exclusive right to file a claim. If he had done so and an award for the comparatively unimportant injury had been made, it must be obvious that it could not afterward be made the basis for a claim such as is here under consideration. The right vesting in the injured man having been allowed to lapse, or to hecome forever barred,” is it possible for any court to hold that it may be revived for the purpose of affording the groundwork for a death claim? Of course, if the injured man had died within one year of the injury from the results of such injury, and proper notice had been given, a claim filed within one year of the death would preserve the rights of the present claimant; but here the original injury did not result in death within one year; and it is not claimed that it would have resulted in death except for the alleged injury in 1918, more than three years later. Obviously the injured man could not have reached back to the primary injury and used it to increase his damages, if he had survived the second injury, and it seems equally clear to us that the


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present claimant has no ground for predicating her claim upon an injury the right to claim compensation for which had been forever barred long before the alleged second injury.

The contract of insurance was at an end when the injured man made no claim within the year limited by the statute. For any injury subsequent to that time a new contract arose by operation of law, and compensation for such second injury depended upon giving the notices provided by section 18 of the Workmen's Compensation Law (as amended by Laws of 1918, chap. 634), or upon facts and circumstances connected with such second injury as would justify a conclusion that the insurance carrier (in this case the employer) was not prejudiced because of a failure to give such notice. No medical attention is shown to have been furnished in connection with the alleged second accident. Indeed it is most uncertain whether


such accident ever occurred under circumstances which in any manner involved the employer, and no attempt is made to show that the employer had any notice whatever of this alleged second accident. The only notice, constructive, inductive or otherwise, is in connection with the accident of April 14, 1915, and as to this the claimant's intestate permitted it to pass without notice, not only for one year but for nearly four years. By what process of reasoning it may be held that the employer was not prejudiced by a failure to give notice of either of these alleged accidents, if it is to be charged with liability for them, is more than we are able to comprehend. If the injury of 1915 was of a character that was likely to result in death from a trifling fall at any time, it was fair that the employer should have had some notice the fact. It might not have been willing to continue the employment with such an impending charge against its industry, and certainly if the injury was such as to lay the foundation for death under the circumstances alleged to exist, it was clearly of importance that the second accident should have been called to the attention of the employer in the manner pointed out by the statute.

We do not think the award is justified under the letter or the spirit of the act, and it should be reversed.

All concur, COCHRANE and H. T. KELLOGG, JJ., in the result on the ground that the findings as to the injuries and cause of death are not supported by the evidence, except John M. KELLOGG, P. J., who dissents, with a memorandum.

JOHN M. KELLOGG, P. J. (dissenting): There was evidence tending to establish that the death was the result of the accident; that the employer had knowledge of the injury and due notice of death, and we are precluded from questioning those findings of fact. By section 18 of the Workmen's Compensation Law compensation cannot be awarded unless notice is given by the injured employee within thirty days after the accident, and death benefits cannot be allowed unless the widow, or party claiming them, gives notice within thirty days after the death. The accidental injury is the basis for compensation. Such injury, and resulting death, are the basis for death benefits. They are separate and different rights, with separate and different remedies. The wife cannot give notice as a basis for death benefits during her husband's lifetime. Neither of them can, by action or inaction, destroy the rights and remedies of the other. I favor an affirmance.

Award reversed and matter remitted to the Commission.

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