Claim of Marinaccio v. Flinn-O'Rourke Co. , 158 N.Y.S. 715 ( 1916 )

Lyon, J.:

The material question involved upon this appeal is whether the State Industrial Commission was-justified in finding that the employer was not prejudiced by the failure of the claimant to give written notice of the accident within ten days after disability, and in excusing such failure to give notice.

- The claimant was injured April 1, 1915, while in the employ of the Flinn-O’Rourke Company, which was engaged in performing a contract in constructing a portion of the new subway in the borough of Manhattan, New York city. The injury was to the claimant’s right eye. He claims that he was struck by a chip which flew from paving blocks' being unloaded from a wagon, but one of the employer’s witnesses testified that, about April twentieth, the claimant told him that he had caught cold in his eye and was suffering from that. However, the distinct weight of evidence was that the injury to the eye was caused by a small piece of stone; that the injury was accidental and that it arose out of and in the course of claimant’s employment as found by the Commission. No written notice of the accident was given the employer until June 16, 1915, or for a period of two months and fifteen days after the happening of the accident. Notice was sent by the claimant to the Commission six days later. The Commission excused the failure of the claimant to give written notice to the employer of the injury within ten days from the date of disability upon the grounds that the claimant was ignorant of that requirement of the statute, and that the employer had not been prejudiced by such failure. (See Workmen’s Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 18.) It is this finding alone which the employer challenges and to which he devotes his brief.

The claimant was an Italian and a foreman of laborers, or perhaps more properly a superintendent of laborers. Changes in the personnel of the laborers were frequent. They came and went at will. There was evidence upon the part of the employer that none of the persons working for it at the time claimant says he was injured could be located by the employer at the time the notice of injury was given June sixteenth. It appears, however, from the testimony of Dr. Cotter, who was one of the physicians permanently engagedby the employer to attend to persons injured upon the job, that on the twentieth day of April he saw the claimant, was told by him that he had suffered an injury to his eye from the stone chipping, and examined his eye; that he found it very badly inflamed, and regarding the condition as serious sent him to the New York Eye and Ear Hospital for treatment, and that he sent a report of all this to the employer that day, April twentieth. This report states the man’s name and station, section of subway work, check number, address, nature of injury, foreign body in right eye, and disposition. This notice was certainly sufficient to apprise the employer that claimant might have sustained a serious injury which called for investigation. Thus, concededly, the employer had full knowledge of all the facts within ten days after the expiration of the ten days within which the claimant was by law required to give written notice of injury to the employer, and opportunity to make full investigation as to all the circumstances attending the accident. It is probable that the employer could then have obtained statements from some or perhaps all the laborers working there April first. It seems, however, that the employer made no effort to find witnesses except possibly that one of the doctors asked two of the laborers if they saw the accident. Upon the hearing before the Commission two of the three laborers who were working unloading stone from the wagon at the time the claimant was injured testified to claimant having received "the injury in the manner claimed by him. The third laborer was said to be in Italy. The claimant testified that he gave prompt notice of his injury on the day following the accident by telling one of the employer’s physicians who attended any injured man, the claimant showing him his eye, and that this physician saw the claimant right along as the claimant continued at his work day after day on the job. The claimant went to his own physician immediately after the accident and was treated by him. The employer cannot, therefore, complain that the claimant’s condition is attributable to his neglect to cause his eye to be promptly treated. The question whether the employer was prejudiced by the failure of the claimant to give written notice of injury was fairly one of fact. The Commission was fully justified in its conclusions. Its decision is binding upon us. The injury was serious and has resulted in permanent partial disability of the eye.

. The award of the Commission should be affirmed.

Award unanimously affirmed.