Claim of Gaddi v. U. S. Slicing Machine Co.

Appellate Division of the Supreme Court of New York

Claim of Gaddi v. U. S. Slicing Machine Co.

9 A.D.2d 971, 193 N.Y.S.2d 813, 1959 N.Y. App. Div. LEXIS 5656

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 10, 1959

StatusPublished

This text of 9 A.D.2d 971 (Claim of Gaddi v. U. S. Slicing Machine Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Gaddi v. U. S. Slicing Machine Co., 9 A.D.2d 971, 193 N.Y.S.2d 813, 1959 N.Y. App. Div. LEXIS 5656 (N.Y. Ct. App. 1959).

Pincite

Opinion

Appeal by employer and carrier from a denial of application to review a prior decision of the board as to the weekly wage rate. The claimant was injured on November 16, 1956. The employer in its notice of injury established the weekly wage at $90 per week and at a hearing in September, 1957, claimant testified that $90 was for an average week. At the hearing, in September, 1957, the matter was adjourned at the request of both parties for the purpose of procuring additional documentary evidence concerning earnings. At the next hearing, November, 1957, no testimony was taken and, without objection, the Referee determined the matter and made an award to claimant. Thereafter — December 2, 1957 — an application for review was made by the carrier and denied. Another application was made on February 6, 1958 and by memorandum decision of the board denied. From this decision appellant for the first time filed a notice of appeal, no appeal having been taken from the November, 1957 decision of the board. While the wage statement introduced by the carrier showed earnings for 1955 and 1956 which controverted the prior statement by the employer and employee as to wages, it would appear that a prior accident of the claimant in 1955 might have affected his earnings. The record in that respect is not clear. In any event, a question of fact was before the board and there was substantial evidence to sustain its finding as to wage rate. There is no merit to the contention of the carrier that it did not have ample opportunity to contest the issue. There had been several prior hearings, all having to do with the question of wages, and no objection was made at the time of the award. Decision and award of the Workmen’s Compensation Board unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Gibson, Herlihy and Reynolds, JJ.

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Appeal by employer and carrier from a denial of application to review a prior decision of the board as to the weekly wage rate. The claimant was injured on November 16, 1956. The employer in its notice of injury established the weekly wage at $90 per week and at a hearing in September, 1957, claimant testified that $90 was for an average week. At the hearing, in September, 1957, the matter was adjourned at the request of both parties for the purpose of procuring additional documentary evidence concerning earnings. At the next hearing, November, 1957, no testimony was taken and, without objection, the Referee determined the matter and made an award to claimant. Thereafter — December 2, 1957 — an application for review was made by the carrier and denied. Another application was made on February 6, 1958 and by memorandum decision of the board denied. From this decision appellant for the first time filed a notice of appeal, no appeal having been taken from the November, 1957 decision of the board. While the wage statement introduced by the carrier showed earnings for 1955 and 1956 which controverted the prior statement by the employer and employee as to wages, it would appear that a prior accident of the claimant in 1955 might have affected his earnings. The record in that respect is not clear. In any event, a question of fact was before the board and there was substantial evidence to sustain its finding as to wage rate. There is no merit to the contention of the carrier that it did not have ample opportunity to contest the issue. There had been several prior hearings, all having to do with the question of wages, and no objection was made at the time of the award. Decision and award of the Workmen’s Compensation Board unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Gibson, Herlihy and Reynolds, JJ.

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Bluebook (online)

9 A.D.2d 971, 193 N.Y.S.2d 813, 1959 N.Y. App. Div. LEXIS 5656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-gaddi-v-u-s-slicing-machine-co-nyappdiv-1959.