Claim of Kraemer v. Mergenthaler Linotype Co.

Cochrane, J.: The accident occurred" September 12, 1918. The claim for compensation was not filed with the Commission within one year thereafter. It was, therefore, barred unless the bar of the statute was waived by the failure of the appellants to raise the question before the Commission on the hearing of the claim. (Workmen’s Compensation Law, § 28, as amd. by Laws of 1918, chap. 634.) Several hearings were had and on August 20, 1920, the Commission made an award in favor of the claimant. From this award the first appeal herein was taken. It is conceded that no objection on the ground of the failure to file the claim had at that time been taken. If such [62] award is still in force the question cannot be raised on an appeal therefrom and such award must be affirmed. After the appeal was taken from said award of August 20, 1920, the Commission of its own motion reconsidered the conflicting evidence on the question of the claimant’s disability for the purpose of determining whether it had been in error in granting the award. It did not vacate or open the award or grant a rehearing or receive any evidence. Obviously no notice to the parties was necessary unless the Commission decided to take some action. But the parties appeared presumably in response to some notice and then for the first time the appellants raised the question that the claim had not been filed within one year after the accident. The Commission concluded that the award previously made was valid and took no action, thereon merely making the statement on December 9, 1920, “ Closed on previous award.” This statement has been miscalled an award or decision and from it the second appeal has been taken by the appellants. Clearly, this could not be the subject of an appeal. (See Matter of Sperduto v. New York City Interborough R. Co., 226 N. Y. 73.) There was nothing before the Commission at the instance of any party which required determination or any action and no determination in any legal sense was made. There was merely the conclusion of the Commission that the situation required no further action. The award of August 20, 1920, stands as the final determination of the Commission unaffected by any subsequent occurrence. The appellants on August 20, 1920, when the award was made having waived their objection that the claim was barred by the statute it is doubtful whether their waiver could thereafter in any event be revoked. We need not, however, decide that question in view of the conclusion we here reach as to the nature and effect of the proceedings subsequent to August twentieth. The Commission after the award of August twentieth made findings which it subsequently modified to the effect that the appellants had waived the bar of the statute because they had not raised' the objection within a reasonable time after the claim came on for hearing. Of course the appellants had a right to take the objection at any time before an award was made and a waiver under the statute does not depend [63] on whether or not the objection is taken within a reasonable time. The findings, however, are no part of the decision, but may be made after an appeal has been taken therefrom. (Workmen’s Compensation Law, § 23, as amd. by Laws of 1917, chap. 705.) Such was the practice here. The conceded fact is that the objection had not been taken when the award of August twentieth was made and the findings not being necessary to sustain the award in that particular should be disregarded. On the hearing the deputy commissioner erroneously stated that the claim was filed November 7, 1918. This statement was inadvertent and incidental to some other matter under consideration. It is very clear that such inadvertent statement did not mislead the appellants or influence their action. If it did they should have asked for a rehearing before the Commission on affidavit or other evidence showing that they had been misled. But neither before the Commission was such claim made nor is it made on this appeal. The award of August 20, 1920, should be affirmed, and the second appeal should be dismissed. Award of August 20, 1920, unanimously affirmed, and the second appeal dismissed.