APPEAL from a decision of the Workmen's Compensation Board, filed May 14, 1954, which denied an application of appellant insurance carrier for leave to file a notice of controversy, and limited employer in presenting his proofs because of failure to file timely said notice of controversy.
Bruce Bromley, Bernard F. Farley and Joseph W. Marlow
Jacob K. Javits, Attorney-General (John J. Quinn and Roy Wiedersum of counsel), for Workmen's Compensation Board, respondent.
James J. Regan for Self-Insurers Association, amicus
George R. Fearon for Associated Industries of New York State, Inc., amicus curiæ.
Joseph D. Edwards and Ralph S. Stowell for Commerce & Industry Association of New York, Inc., amicus curiæ.
Upon this appeal we are asked to determine whether the Workmen's Compensation Board has the power to adopt a rule which precludes the contesting of claims by employers and insurance carriers for failure to file notices of controversy. The challenged rule, adopted by the board in amended form effective April 8, 1954, reads as follows:
'Rule 21. Controverting Claims.
'Notice of Controversy, form C-7, must be completed
and filed with the Chairman on or before the eighteenth day of
disability or within ten days after the employer first has knowledge of the
alleged accident, in all cases in which the right of a claimant
to compensation is controverted. A copy of this form C-7 must be mailed to the claimant and to his representative, if any, simultaneously with the filing with the Chairman. The issues being controverted must be clearly indicated with an explanation of the reasons for the controversy, and the employer shall not thereafter plead any issue not so controverted. If the employer fails to file form C-7 within the period prescribed by Section 25, he shall not thereafter plead that the injured person was not at the time of the accident an employee of the employer, or that the employee did not sustain accidental injury, or that the injury did not arise out of and in the course of the employment.
'A panel of the Board may, upon affidavit and proof that filing of the prescribed form C-7 within the time provided in Section 25 was not reasonably possible, permit filing nunc pro tunc.' (Rules and Procedure under Workmen's Compensation Law, rule 21.)
Briefly, the facts which give rise to this appeal are: The decedent, age sixty-seven, was employed as a waiter. While carrying an order of alcoholic beverages to a table, he slumped to the floor and died of coronary sclerosis. The employer, apparently believing that the death was not caused by an accident within the meaning of the Workmen's Compensation Law, did not then file a report of injury. Approximately two months after the occurrence, the board, by letter dated April 15, 1954, advised the employer that a claim for death benefits had been made and directed the employer to file an employer's report of injury. The employer completed the report of injury but its insurance carrier did not receive it until April 26, 1954. The insurance carrier filed the report with the board on April 28, 1954, together with a notice of controversy. Since the notice ...