Matter of Twonko v. . Rome B. C. Co. , 224 N.Y. 263 ( 1918 )

Section 18 of the Workmen's Compensation Law (Cons. Laws, ch. 67), as applicable to this case, required notice of the injury to be given to the employer within ten days after the accident, and, by section 28, the right to claim compensation was forever barred unless within one year after the accident the claim for compensation was filed with the commission. Neither of these provisions was complied with. The commission found that the employer was aware of the accident and that neither the employer nor the insurance carrier was prejudiced by the failure to give the notice required by section 18. It may be that there is some evidence to sustain such a finding, but we are of the opinion that there is no legal excuse shown for failure to comply with section 28. The commission found, and the Appellate Division has sustained the finding by a divided court, that the employer and the insurance carrier were estopped from raising this objection. The facts do not justify this conclusion.

Frank Twonko, while in the employ of the Rome Brass and Copper Company, was injured on July 20th, 1914. His claim for compensation was filed with the workmen's compensation commission on September 9th, 1915, or fifty-one days after his right to compensation was barred by the statute. Twonko claimed to have stepped in a hole in the floor turning his ankle which thereafter led to serious results. He continued at work for two days and then remained at home for four weeks. At the end of this period he returned to work for three days and then remained at home for five weeks when he called a doctor and was taken to the infirmary.

Dr. Reid who attended him was apparently anxious about his compensation, as on September 26th, 1914, the Rome Brass and Copper Company wrote to Mr. Williver, the district manager of the American Mutual Compensation Insurance Company, notifying him of the accident and stating that Dr. Reid wanted to know about the man's hospital and medical charges. The insurance carrier replied on September 28th, 1914, asking particulars regarding the accident. On October 20th, 1914, Kenneth Bow, paymaster of the Rome Brass and Copper Company, called at the Rome infirmary and procured from Frank Twonko a written statement signed by him giving the details of his accident and the extent of the injury. On October 23d 1914, a copy of this statement was sent by the employer to the insurance company. Twonko remained in the infirmary until the 6th of January, 1915.

The insurance company sent checks to Drs. Reid and Stranahan for their services to Twonko as follows: On November 3d 1914, for $8.00; on November 14th, 1914, for $44.00; on January 12th, 1915, for $10.00, and on February 6th, 1915, for $5.00, and to the Rome infirmary a check dated December 7th, 1914, for $30.00, and on January 12th, 1915, a check for $31.00.

Twonko testified that at the time he signed the statement of October 20th for Kenneth Bow, he understood that it was a notice to the company of claim for compensation. "Mr. Petz (the interpreter) told me that I was going to get money from the Compensation Insurance Company and that was the reason I signed the papers." The witness further says that this was the reason that he gave no further notice.

Bow testified: "We told him that in order to have all the facts so he would receive his compensation it would be necessary for him to give us a statement exactly how the accident occurred and the time he laid off."

These circumstances together with the fact that Twonko did not speak English are the basis for the estoppel found by the commission. There is no suggestion that the claim which the law required should be filed with the commission was referred to or that it was even intimated that it should not be filed. The claimant was obliged to give notice to the employer as well as file a claim with the commission. In his testimony it may be noted that he considered his statement of October 20th, 1914, to be a notice to the company, not that he thought it a claim to be filed with the commission. It may be that the claimant knew nothing about the procedure under the Workmen's Compensation Law, but his ignorance can not weaken its provisions and requirements. They are as binding upon him as upon one fully acquainted with all the privileges and obligations of the act. Even if we assume that Bow undertook to waive for his company and the insurance carrier the provisions of section 28 (which is not the fact), yet he had no authority so to do and such an attempt would not be binding upon the parties to this proceeding. (Dailey v.Stoll, 211 N.Y. 74.)

The claimant had until July 20th, 1915, to file his claim with the commission. The last payment by the insurance carrier of any money for his benefit was on February 6th, 1915. During a period, therefore, of five months the claimant knew that he was receiving no money upon his claim or by virtue of his statement given to Bow. The first letter from his lawyer to the commission is dated August 21st, 1915.

That the insurance carrier paid the doctors and the infirmary could not amount to estoppel without some representation by it justifying the claimant in a belief that his claim had been filed or would be filed with the commission.

The law states that the right to compensation shall be forever barred unless within one year after the accident a claim for compensation shall be filed with the commission. These plain provisions can not be dispensed with by such evidence as we have in this case. (Buckles v. State of New York, 221 N.Y. 418.)

The order of the Appellate Division should be reversed and the determination of the state industrial commission annulled and claim dismissed, with costs against the industrial commission in this court and in the Appellate Division.

HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN and McLAUGHLIN, JJ., concur.

Order reversed, etc.