[Vol. 15] State Industrial Commission in order to obtain the work of milling a portion of the grain threshed for such farmers. No regular contract was entered into for the threshing of the grain on Hilton's farm, but Joseph Hilton testified that he asked Taylor Brothers to come and thresh his grain and mill some of it. It was also the understanding of Taylor Brothers that some of the grain threshed for Joseph Hilton would be taken to the mill by Hilton to be ground. A standard price for threshing was charged and likewise a standard price for milling. In addition to the threshing price per bushel, board and lodging for the men engaged in threshing were furnished by Joseph Hilton. The average weekly wage of William C. Vincent was the sum of twelve dollars and eighteen cents; he was paid two dollars per day, in addition to which he received his board and lodging. The value of the board and lodging was shown to be seven dollars per week. It was customary in the vicinity where this work was being carried on that all threshing contracts include a certain price per bushel for threshing and, in addition thereto, board and lodging for the men engaged in the threshing. Written notice of injury was not given to his employer within ten days after disability, but the employer was aware of the accident and was notified verbally immediately after the happening thereof and was requested to and did furnish medical attention. Therefore neither the employer nor the insurance carrier was prejudiced by such failure. Award of compensation is hereby made against Taylor Brothers, employer, and London Guarantee and Accident Company, Limited, insurance carrier, to William C. Vincent, injured employee, at the rate of twelve dollars and eighteen cents per week for a period of 244 weeks for the equivalent loss of the right hand. The failure of William C. Vincent to give written notice of injury to his employer within ten days after disability is hereby excused on the ground that neither the employer nor the insurance carrier was prejudiced by such failure, t State Industrial Commission [Vol. 15] In the Matter of the Claim of JOHN M. O'ESAU, for Compensation under the Workmen's Compensation Law, against E. W. BLISS COMPANY, Employer; ETNA LIFE INSURANCE COMPANY. Insurance Carrier File No. 35053 (Decided March 22, 1918) Injuries sustained by John M. O'Esau, while employed by the E. W. Bliss Company, resulting in blood poisoning in his right hand and his right foot and necessitating three successive operations. At the March, 1918, term of the Appellate Division, Supreme Court, Third Department, the court remitted to this Commission the claim herein for the purpose of making such findings as the Commission might see fit in reference to the filing of a claim within a year after the accident. The Commission under order of the Appellate Division finds that a letter sent to the Commission signed by the claimant was a filing of the claim within the year after said accident and also makes its amended conclusions of facts, ruling of law and award as ordered by the Appellate Division. It appears that the original claimant herein died on March 21, 1918. Held, that the employer and the insurance carrier are alike estopped to plead the Statute of Limitations in respect to the alleged failure of the claimant to file his claim within one year after the injury. The opinion of the Commissioner, Edward P. Lyon, is adopted as the opinion of this Commission only in so far as it is not inconsistent with these amended findings. This claim was remitted to this Commission by the Appellate Division, Supreme Court, third department, at the March, 1918, term, for the purpose of making such findings as the Commission might see fit in reference to the filing of a claim within a year after the accident. On March 18, 1918, the order of the Appellate Division was adopted as the order of the Commission and a hearing held on March 22, 1918, at which time it developed that John M. O'Esau, the claimant herein, died on March 21, 1918. Robert W. Bonynge, counsel to State Industrial Commission. James B. Henney, attorney for employer and insurance carrier. Martha A. O'Esau, widow of claimant. [Vol. 15] State Industrial Commission BY THE COMMISSION.-It appearing that the Attorney-General, having contended upon argument of this appeal before the Appellate Division that a letter to the Commission signed by the claimant was a filing of the claim within the year after said accident, this Commission pursuant to the order of the Appellate Division remitting this case makes its amended conclusions of fact, ruling of law and award as follows: This Commission readopts and reaffirms all of the "conclusions of fact" contained in the original findings of this Commission dated November 15, 1917, except the 8d and 4th paragraphs thereof, which are hereby amended to read as follows: 3. John M. O'Esau filed with this Commission a formal claim for compensation on June 6, 1917, which was more than one year after the date of the actual injury received, but less than one year from the date of actual disability; however, within one year after the date of said accident, and on October 24, 1916, the State Industrial Commission received and filed a letter signed by the claimant herein, in which he states as follows: "I would like to know if I am entitled to any compensation. I have been working for the E. W. Bliss Co. ammunition works for the past year. Six months ago I received an injury which afterwards turned into blood poisoning in my right hand and then passed into my right foot. I was operated on three times and am just recovering from it. "I lost about one month's time by taking a few days off each week from the pain. I receive $14.40 for a full week and as I have a wife and child to support it is going to be hard to pay a doctor's bill." 4. The conduct of the employer, in view of all the circumstances, and particularly in keeping the claimant employed up to April 30, 1917, for a period of more than a year after the date of said accident, at a rate of wages equal to the wages earned, prior to said accident, and in furnishing medical attention for the period required by the Compensation Law, directly induced the claimant to delay in filing a formal claim for compensation until after the expiration of the statutory period, as set forth in section 28 of the Compensation Law. State Industrial Commission [Vol. 15] This Commission readopts and reaffirms all of the "ruling of law" and "award" contained in the original findings dated November 15, 1917. This Commission amends its "decision" contained in the original findings dated November 15, 1917, which decision, as amended, is to read as follows: The failure, if any, of John M. O'Esau to give written notice of injury to his employer within ten days after disability is hereby excused on the ground that neither the employer nor insurance carrier was prejudiced by such failure, if any. The letter written by the claimant, John M. O'Esau, to this Commission dated October 22, 1916, and which letter was received and filed October 26, 1916, constitutes a claim for compensation. The employer and insurance carrier are alike estopped to plead the Statute of Limitations in respect to the alleged failure of the claimant to file his claim within one year after the injury, since by the conduct of the employer, whether fraudulent or not, it has directly induced the plaintiff to delay in filing a formal claim for compensation with the Commission until after the expiration of one year from the date of said accident. The opinion of Commissioner Edward P. Lyon herein is adopted as the opinion of this Commission only in so far as it is not inconsistent with these amended findings. In the Matter of the Claim of JULIA FOSTER, Widow, for Compensation under the Workmen's Compensation Law, for the Death of JAMES E. FOSTER, against WILSON & ENGLISH CONSTRUCTION COMPANY, Employer; EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Insurance Carrier Case No. 11241 (Decided March 25, 1918) Injuries sustained by James E. Foster, resulting in his death, while employed by the Wilson & English Construction Company, as a locomotive engineer, at Winfield, L. I. On August 26, 1916, James E. Foster, while employed by the Wilson & English Construction Company, general contractors of New York [Vol. 15] State Industrial Commission city, who were also operating a steam railway at Winfield, L. I., was riding on the rear running board of an engine which was pushing a handcar loaded with lumber. The car jumped the track, jambing the timber against Foster's left leg, requiring an amputation above the knee. Gangrene set in and Foster died as a result on August 30, 1916. The average weekly wage of James E. Foster was the sum of twentythree dollars and eight cents. Award made. This claim came on for hearing before State Industrial Commission at its office, No. 230 Fifth avenue, borough of Manhattan, city of New York, on October 11, 1916, and October 18, 1916, on which latter date an award of compensation was duly made to Julia Foster, widow, at the rate of six dollars and ninety-three cents weekly, during widowhood, with two years' compensation in one sum upon remarriage, together with an award of one hundred dollars on account of the funeral expenses of James E. Foster, deceased. On October 25, 1916, a copy of the decision and award was duly mailed to all parties pursuant to sections 20 and 23 of the Compensation Law. No appeal from said award has ever been taken, but the employer and insurance carrier have acquiesced in said award and made payments thereunder. On August 5, 1917, application of the claimant to have the award commuted into one lump sum came on for hearing, at which time said application was denied; thereafter, and on January 23, 1918, and February 6, 1918, the application of the claimant for commutation of the award was duly considered and on the latter date the award was commuted into one lump sum as of February 6, 1918. On March 25, 1918, the action of February 6, 1918, in commuting said award was confirmed. Robert W. Bonynge, counsel to State Industrial Commission. Bertrand L. Pettigrew, attorney for employer and insurance carrier. Jeremiah F. Connor, attorney 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, award and decision, as follows: |