Claim of Schlenker v. Garford Motor Truck Co.

183 A.D. 166, 170 N.Y.S. 439, 1918 N.Y. App. Div. LEXIS 5055

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1918
• Status: Published

Opinion

Cochrane, J.:

The death of Joseph Schlenker on May 9, 1917, is claimed to have resulted from injuries received by him on April 16, 1917. He left a widow and two small children. The employer and the widow, as the principal dependent of the deceased, entered into an agreement dated May 24, 1917, for the payment of compensation and submitted a joint report of the claim containing such agreement to the State Industrial Commission for its approval pursuant to section 20 of the Workmen’s Compensation Law. That section provides: “ The Commission shall examine such report and approve the same when the terms are strictly in accordance with this chapter and such approval shall constitute an award.” (Con-sol. Laws, chap. 67 [Laws of 1914, chap. 41], § 20, as amd. by Laws of 1915, chap. 167, and Laws of 1917, chap. 705.) Such approval was given by the Commission July 16, 1917. Apparently on July 2, 1917, the insurance carrier advised the Commission that in its opinion the death of Schlenker was not attributable to his injury.

It is now urged that the insurance carrier having indicated its dissatisfaction with the agreement before the same was approved by the Commission, "the latter could not thereafter give its approval. The statute (§ 20) does not make the approval of the Commission depend on the consent of the insurer nor even on the consent of all of the claimants, but only on the consent of the employer and principal dependent. The approval of the Commission was, therefore, properly given even though the insurer had protested more vigorously than it seems to have done in this case, and by the mandate of the statute “ such approval shall constitute an award.” Of course the insurer is entitled to a hearing and without such hearing such award could not be deemed conclusive as to the insurer. But the insurer in this case has had such hearing. On October 10, 1917, a hearing was given by the Commission, at which the insurer appeared by counsel, produced witnesses, and had them examined. The testimony of such witnesses tended in no respect to impeach the award previously made or to overcome the presumption of section 21 “ that the claim comes within the provisions of this chapter.” The injury consisted of a blow on the head. The employee died twenty-three days thereafter from tubercular.meningitis, and one of the medical experts produced by the insurer testified that he found “ a distinct tuberculosis of the base of the brain.” All the medical testimony was to the effect that a trauma of the kind which the employee received could excite a dormant tubercular condition into activity and accelerate death. The appellants produced no evidence to the contrary but merely that there were no traumatic indications at the time of his death more than three weeks after the trauma, and the Commission. adhered to its previous award. Again on December fifth the insurer asked to have the case reopened but presented no additional evidence nor did it claim to be able to do so. The refusal of the Commission to then reopen the case was discretionary. The insurer had had its day in court.

The award and decisions should be affirmed.

Award and decisions unanimously affirmed.