[Vol. 15] State Industrial Commission to help pull and bunch the beans to save them from the coming frost, and he had been so employed for a period of two hours prior to said accident. On said date, George Clarke, while working for his employer, and while engaged in the regular course of his employment, and while performing an act incidental and requisite to the prosecution of and appropriate in the carrying forward of and supplying the needs of the canning business, and while bending over in the act of bunching beans, the tine of a pitchfork which was being handled by a fellow employee struck the left eye of George Clarke, injuring the same, and as a result of such injuries he sustained the permanent loss of use of said eye. The employment in which George Clarke was engaged at the time of said accident was not farm labor within the meaning of the Workmen's Compensation Law. Due notice of injury was given to the employer. The average weekly wage of George Clarke was the sum of fourteen dollars and forty-two cents. Award of compensation is hereby made against Roger I. Sherman, Inc., employer, and the Fidelity and Casualty Company of New York, insurance carrier, to George Clarke, injured employee, at the rate of nine dollars and sixty-one cents per week for a period of 128 weeks for the permanent loss of use of the left eye. In the Matter of the Claim of ANTONIO LETTIERE for Compensation under the Workmen's Compensation Law, against THE DEGNON CONTRACTING COMPANY, Employer and Self-insurer Case No. 21477 (Decided February 15, 1918) Injuries sustained by Antonio Lettiere while employed as a foreman by the Degnon Contracting Company at New York City. On June 30, 1916, Antonio Lettiere was employed as a foreman by the Degnon Contracting Company of New York city, a corporation engaged in subway construction in that city, when a wheeled push-car struck him State Industrial Commission [Vol. 15] on the side, knocked him down and twisted him half way around, inflicting injuries which disabled him from the date of the accident until February 15, 1918, on which last date he was still disabled. By reason of a written agreement to pay compensation made between the employer and the claimant the employer is estopped from raising any question as to a failure to give written notice of injury. The average weekly wage of Antonio Lettiere was the sum of twenty dollars and nineteen cents. An award was made. An agreement to pay compensation was entered into between the employer and claimant herein on July 20, 1916, for the payment of compensation on account of injuries received on June 30, 1916. On January 12, 1917, said agreement was duly approved and notice of award or approval of said agreement was mailed to each party. Thereafter this claim came on for hearing on March 13, 1917, and March 30, 1917, on which latter date an award of compensation was duly made. Thereafter, this case came on for hearing on May 4, 1917; May 11, 1917; May 12, 1917; May 19, 1917; June 22, 1917; June 29, 1917; July 20, 1917; August 10, 1917; November 2, 1917; November 16, 1917; November 30, 1917; December 28, 1917; January 25, 1918; February 6, 1918, and February 15, 1918; on which latter date an award of compensation was made, from which this appeal has been taken. Robert W. Bonynge, counsel to State Industrial Commission. Frederick J. Flynn, attorney for employer and self-insurer. James W. Bailey and Israel V. Werbin, attorneys for claimant. BY THE COMMISSION.-All the evidence submitted before the Commission having been heard and duly considered, the Commission makes its conclusions of fact, ruling of law, award and decision as follows: On June 30, 1916, the day when Antonio Lettiere received his injuries, he resided at No. 206 Fourth avenue, Brooklyn, N. Y., and was employed by the Degnon Contracting Company, of No. 30 East Forty-second street, New York city, engaged in sub [Vol. 15] State Industrial Commission way construction at Sixtieth street and Park avenue, New York city. Antonio Lettiere was employed as a foreman. On said date Antonio Lettiere was working for his employer at Sixtieth street and Park avenue, New York city, and while engaged in the regular course of his employment a wheeled pushcar knocked him down, striking him on the side and twisted him half way around, and he sustained injuries consisting of contusion of the pelvis and hip-joint, hematoma of buttock and sprain of leg—all on left side- and a sprain of the sacral spine, which injuries disabled him from the date of said accident to February 15, 1918, and on that date he was still disabled. The average weekly wage of Antonio Lettiere was the sum of twenty dollars and nineteen cents. It does not appear whether written notice of injury was given to the employer within ten days after disability, but the employer was aware of the accident and provided medical attention shortly thereafter and, therefore, the employer was not prejudiced by such failure, if any. By reason of the written agreement to pay compensation entered into on July 20, 1916, between the employer and claimant, the employer is estopped from raising any question in respect to the failure to give written notice of injury, if any. Award of compensation is hereby made against the Degnon Contracting Company, employer and self-insurer, to Antonio Lettiere, injured employee, at the rate of $13.46 per week for a period of thirteen weeks from November 17, 1917, to February 15, 1918, amounting to $174.98, and this claim is hereby continued for further hearing. The failure, if any, to give written notice of injury to the employer within ten days after disability is hereby excused on the ground that the employer and self-insurer was not prejudiced by such failure, if any. The employer and self-insurer is estopped from raising any question in respect to the failure to give written notice of injury within ten days after disability by reason of the written agreement to pay compensation entered into between the employer and claimant on July 20, 1916. State Industrial Commission [Vol. 15] In the Matter of the Claim of HAROLD BAXTER, for Compensation under the Workmen's Compensation Law, against WALLER LIGHTERAGE COMPANY, Employer; UNITED STATES CASUALTY COMPANY, Insurance Carrier File No. 40899 (Decided February 25, 1918) Injuries sustained by Harold Baxter while employed as a barge captain by the Waller Lighterage Company at New York City. On February 8, 1916, Harold Baxter was employed as a barge captain by the Waller Lighterage Company of New York city, a corporation engaged in the business of harbor transportation, when a cleat broke, catching his leg in a line between the rail of the barge and the cleat, resulting in injuries which disabled him from the date of the accident to October 2, 1917, and on that date he was still disabled. This case has been considered by the Commission several times. Receipts for compensation, under a form of agreement between the claimant and the employer but never signed by the employer, indicate that the compensation was paid to the claimant pursuant to said "report of agreement." On July 24, 1916, an award was made by the Commission to this claimant for a period of twenty-four weeks. From this award neither the employer nor insurance carrier appealed. Payments of further awards were subsequently made to the claimant up to August 27, 1917. On October 1, 1917, a further award was made and on appeal the award made on that date was rescinded and a new award was made. It is from this last award that this appeal is taken. The average weekly wage of Harold Baxter was the sum of twenty-three dollars and forty-three cents. An award was made. Harold Baxter, the claimant herein, sustained his injuries on February 8, 1916. On March 20, 1916, a representative of the insurance carrier prepared in his own handwriting a form of report of agreement for the payment of such compensation as might be determined from the nature, extent, duration and result of the injuries sustained on February 8, 1916, and which compensation was to be paid in strict accordance with the Compensation Law. Said agreement was signed by the claimant and was also signed by the representative of the insurance carrier as a witness. The agreement was never signed by the employer but [Vol. 15] State Industrial Commission the signature of the representative of the insurance carrier appears opposite the blank line left for the signature of the employer. The form of agreement was thus signed in duplicate and both duplicates were given to the claimant who took them to his employer. Said duplicate originals were received by the Commission on January 9, 1918, never having been filed with the Commission prior to that date, and never having been approved by the Commission. However, pursuant to said "report of agreement," the insurance carrier proceeded to pay compensation to the claimant herein at the agreed rate of fifteen dollars per week. The receipts for compensation forwarded to this Commission by the insurance carrier by letter dated March 24, 1916, indicate that the compensation was paid to the claimant pursuant to said report of agreement dated March 20, 1916. On July 24, 1916, an award of compensation was duly made by the State Industrial Commission to Harold Baxter, injured employee, for a period of twenty-four weeks, and on July 26, 1916, a copy of notice of said award was duly served on the employer and insurance carrier pursuant to sections 20 and 23 of the Compensation Law, and no appeal has ever been taken therefrom by either the employer or insurance carrier. On October 2, 1916, a further award of compensation for a period of four weeks was made, and on October 9, 1916, notice of said award was duly served on the employer and insurance carrier pursuant to sections 20 and 23 of the Compensation Law, and no appeal has ever been taken therefrom by either the employer or insurance carrier. Payments of compensation were continued to the claimant herein up to August 27, 1917. On October 1, 1917, a further award of compensation was made Harold Baxter, injured employee, and from said award an appeal was taken. On February 25, 1918, the award made on October 1, 1917, was rescinded and a new award was made. In the consideration of this claim, hearings were held before this Commission on July 24, 1916, October 2, 1916, October 1, 1917, November 16, 1917, November 19, 1917, November 26, 1917, December 14, 1917, and February 25, 1918. |