Claim of Acker v. Buffalo Forge Co.

278 A.D. 988, 105 N.Y.S.2d 823, 1951 N.Y. App. Div. LEXIS 5452

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1951
• Status: Published

Opinion

Appeal from decision and award of the Workmen’s Compensation Board. For some years claimant’s husband worked as a sand blaster for Atlas Steel Castings Co. In July, 1944, he Became ill and stopped work. There is proof thát in this work he contracted silieo-tuberculosís, án occupatióñal dust disease. In September, 1944, he went tó work for a short timé fpr appellant Buffalo JPorgé Compariy. In his disability claim the employee himself said he “ made an effort’* tó work in this périod. On October, 2, 1944, hé, bécámé totally disabled from the dust disease añ.d on March Í3, 1945, he filed a claim ¿gainst Atlas for compensation fór thi.s disease. Hé diéd July 24, 1946. líis wife filed á claim ¿gainst Atlas November 1, 1946. On application of Atlas, the appélíañt Buffálo Fórgé, the last, actual émployér of the deceased, was brought into the prpcéediñg on May 6, Í947. No 'claim Áas ever made by decedent or his wife agaiñst Buffalo Forge. Claimant’s attorney expressly disavowed any responsibility for su'eh a claim. He said at one hearing that the present claimant did not “ initiate ” the proeeédiñg against Buffalo Fbr'ge. Át another hearing he sáid “ What is th'e basis pf that claim or the papers that have to b'e filed? Í don’t k’ñow. It’s eñtiíely Ptitside the scope pf iny responsibility to the 'claimant widow.” , Almost five years aftér thé disabiliíy_ and Over three years after th'e death of the employee, the board amended the claims filed, solely against Atlas, “ to read against ” the Bhffalp Forge Company ahd to élihlmhté Atlas. The b'oard had ño power to amfedE the claims as aSsértéd by 'clkiiñánts so 'as id direct them tti ,“ read against ” an émpioy'ér ñdt the Object of any claim asserted by ‘claimants. A claim is made, ndt by the boárd; biit by a cláiniant. Assuming the power existed,, its exercise On Jude 16; Í949, was the assertion of éntirély ñéW ahd different claims áiíd wás toó late to breathe life into the claims which had long expired as, far as appellants ¿re concerned. (Wdi’kmen’s Compensation Law, § 28.) The giving of notice could well have been waived oñ the record beforé thé hoai’á, ás it was, but the' timeliness bf aü hssertéd cláim has certainly Hot been Waived nbr has there béén áhy finding by the board oi facts within thé statute to constitute such a waiver; The decision arid ¿ward are reversed, and' the casé remitted to the board for determination on thé claims as Sled by the claimants, with costs to appellants agdiñst thé Workmen’s Coínpensátio'ú BohfH. Foster, P. J., Brewstér, Déyo, Bergan ¿nd Cooh, jj., cohCdr.