Fostner v. Morawitz

Van Kirk, J. The employer and carrier did not have a fair trial. The referee was arbitrary in his rulings and his conduct destroys confidence in his judgment. The award made is not supported by the evidence. Dr. Fineberg’s testimony that in his opinion such scars as were present on the face will disappear is not directly disputed, though it may be disputed by inference. When we reversed the former award in this case we indicated what was to be considered as a facial disfigurement. Unless the disfigurement is on the face, is serious and is permanent, an award for serious facial disfigurement may not be had. Perhaps the referee was justified in refusing to allow a photograph in evidence after he had announced the award, but, in view of the record here, we feel inclined to remark that a photograph of one claiming for serious facial disfigurement would not only be proper, but helpful, evidence. The award should be reversed. On the former appeal the appellants urged that the case does not come under the Workmen’s Compensation Law on the ground that the claimant was a domestic servant and the provisions of section 51 of the Workmen’s Compensation Law were not complied with. Our order on the former appeal does not show that we passed upon this question. If the objection were well taken the claim should have been dismissed. We then thought the objection was not well taken. However, the objection is now urgently presented and the opinion of the court requested. The employer’s first and supplemental reports show that he had insurance, and name the carrier. The only fair inference from these reports is that he had paid the premium and had insurance covering his domestic servants, the only claim being by a domestic servant. The policy is not in the record. [179] The Workmen’s Compensation Law (§ 3, subd. 1, group 19) provides: “An employer may bring an employment that is not listed hi this section within the coverage of this chapter by securing compensation to his employee or employees engaged in such employment in accordance with section fifty of this chapter. Any employee in the service of such employer shall be deemed to have accepted, and shall be subject to the provisions of this chapter, and any act amendatory thereof, if at the time of the accident for which liability is claimed the employee shall not at the time of entering into his contract of hire have given to his employer notice in writing that he elects not to be subject to the provisions of this chapter and filed a copy thereof with the Commissioner, or in the event that such contract of hire was made in advance of election of the employer, such employee shall not have given to his employer and filed with the Commissioner, within twenty days after such election, notice in writing that he elects not to be subject to such provisions.” This claimant did not give the notice specified in this section and thus is deemed to have elected to be under the provisions of the law. Section 51 of' the act requires that the employer who has complied with section 50 of the chapter (that is, taken out insurance) shall post and maintain in a conspicuous place or places in and about his place or places of business typewritten or printed notices in form prescribed by the .Commissioner, stating the fact that he has complied with all the rules and regulations of the Department and that he has secured the payment of compensation to his employees and their dependents in accordance with the provisions of this chapter. This is a duty put upon the employer and he should not be allowed, if he omitted to post these notices, to take advantage of his own fault. There is no proof in the case and no presumption that he did not post the notices. The provisions of section 51 are for the benefit of the employee. The claimant is asking an award; she does not complain of the failure to give the posted notices, if there were such failure. We think the claimant is subject to the provisions of the Workmen’s Compensation Law. But it is claimed further that section 3, subdivision 1, group 19, does not apply to farm laborers or domestic servants because, in the definition of “ employee ” in section 2, subdivision 4, of the act, it is stated that this definition shall not include “ farm laborers or domestic servants.” This question is discussed in Caldana v. Buezenburg (206 App. Div. 183) in the Fourth Department, and it is there held that farm laborers and domestic servants may come under the act as provided by the antecedents of section 3, subdivision 1, group 19. The argument there applies with full force to the statute as it stood in 1923, when this accident happened, and we [180] concur in the conclusion reached. We think the employment is subject to the provisions of the Workmen’s Compensation Law. The award should be reversed and the claim remitted to take further proof as to serious facial disfigurement. All concur. Award reversed and matter remitted, with costs against the State Industrial Board to abide the event, to take proof as to the serious facial disfigurement.