DocketNumber: Claim No. 57396
Citation Numbers: 80 Misc. 2d 460
Judges: Donaldson
Filed Date: 1/9/1975
Status: Precedential
Modified Date: 2/5/2022
The court, in its decision filed June 18,1974, found the State to he liable and restored the claim for proof of damages.
With respect to this issue, the State contended that the claimant, as subrogeee, received no greater rights than that which the subrogor had and transferred to it. Two factors are relevant in determining this contention: one, whether the order of Judge Oooke, dated May 11, 1972, denying the motion on behalf of Mrs. iSmith to file a late claim, minified and stultified all allegations with respect to a claim involving the instant claimant, and
Mrs. .Smith was the injured employee. The Claimant was'the workmen’s compensation carrier for her employer. By operation of law under section 29 of that law, it became the subrogee of Mrs. Smith, thus creating an assignment.' (See decision of this court filed June 18, 1974, 80 Misc 2d 454.) While her claim was. rejected by this courLas untimely filed, the merits of her claim were not in issue.' Failure to conform .with statutory requirements is a 'matter of procedure and not of substance. The failure to timely-file caused the expiration of the procedural remedy of enforcement but did not extinguish the cause of action. (Hulbert v. Clark, 128 N. Y. 295; Graves v. East Hudson Parkway Auth., 43 A D 2d (307.) Therefore, the, claim was a viable one, in the opinion of the court, at the time the claimant filed its claim. Subdivision 2 of section 29 of the Workmen’s Compensation Law contains, in part, the following language: “If such * * * carrier:, as such an assignee, recover from such, other, either by judgment, settíemént or otherwise, a sum in excess of the total amount of compensation awarded to such injured employee or his dependents and-the expenses for medical treatment paid by it, together with the reasonable and necessary expenditures incurre^ in effecting such recovery, it shall forthwith pay to such injured employee or his dependents, as the ease may be, two-thirds of, such excess, and to the extent of two-thirds of any such excess such recovery shall be deemed for the benefit of suqh employee or his dependents. When, the compensation awarded requires periodical, payments, the number of which can-pot be, determined at the time of such award, the board shall, when the injury or death was caused by the negligence or wrong of another not in the same employ, estimate the probable total amount thereof upon the basis of the survivorship' annuitants table of mortality, the. remarriage tables of the Dutch Boyal Insurance Institution and such facts as it may deem pertinent, and such estimate shall be deemed the amount of the compensation awarded in such case, for the purpose of computing the amount of such excess recovery, subject to the modification thereof as hereinafter provided. ”
Claimant contended that these provisions of section 29 of the Workmen’s Compensation Law' sustain a prohibition of split
Laura Smith, bom July 13, 1923, was aged 48 and weighed 280 pounds at the time of the accident of March 16, 1971, and was earning an average weekly wage of $82. She testified that in the accident she struck the left side and top of her head, her knees hit the dashboard, she rooked back and forth, her chest hit the steering wheel, and when she applied the brakes, her feet were jarred; that immediately thereafter she noticed a ringing in her ears, a tautness and stiffness in her neck, pain in the chest, throbbing in the lower back, puffiness in the legs, and soreness and pain in her feet; that she returned to work and continued until April 26, 1971 when she saw Doctor John McNulty; that she visited him because, while driving the school bus, she had double vision and saw in the road obstacles .which were not there, a locking of the knee, a feeling of illness and disorientation; that since April 26, 1971, she has not been gainfully employed, has received medical attention, hospitalization X-ray, medication and application of various appliances. At trial, Mrs. Smith stated that her complaints were loss of hearing in the left ear, diminution of hearing in the right ear, disorientation, dizziness, pain in the head, neck, back and spine, a numbness in the right arm, a buckling and locking of the right knee, headaches, the need to wear a back brace and a knee brace. Upon cross-examination, Laura Smith testified that she had injured
Medical testimony produced showed that after March 16,1971, Mrs. ,Smith was treated by physicians commencing April 26, 1971 and continuing to August 14, 1974. Doctor John McNulty found a pre-existing fracture of the fifth lumbar vertebra which condition was permanent, was causally aggravated 50% by the accident of March, 1971, and an unrelated internal derangement of the right knee. Doctor Bernard H. Berson found that the instant accident aggravated to the extent of 50% a pre-existingsevere sensory neural loss of hearing in the left ear, and an unrelated underlying diabetes. Doctor Marvin Shapiro testified that the vertigo was a permanent condition somewhat causally aggravated by the accident.
The court therefore believes, and so finds, that as a consequence of the accident of1 March 16, 1971, Mrs. Smith sustained a causally related permanent disability, the competent producing and proximate cause of which was partially attributable to the extent of 25 % to the March 16, 1971 accident, of which 10% was referrable to vertigo, 50% to back injury and >10% to the increased loss of hearing in the left ear. The court finds no proof of causal relationship for all other complaints, and their related medication, treatment and appliances.
The court awards to the claimant, Atlantic Mutual Insurance Company, the sum of $75,000 for all damages.
Motions upon which decision was reserved, not hereinbefore ruled upon, are now denied.
Let judgment be entered accordingly.