as to hold the claim sufficient where there was no semblance of the assertion of any claim.'
In the cited case, the plaintiff-claimant cited cases to support his contentions, but the court pointed out that they were distinguishable from the cited case and hence not applicable. The distinguishing point was that in the cases cited by the plaintiff (and in the cases cited by the defendant here), where notice was held to be sufficient where no written notice was given, the injuries were sustained in the presence of the officers of employers. The court also wrote at page 643:
'The testimony in the instant case discloses that plaintiff knew that notice should be given to the employer and he may have considered the telephone talk sufficient, but that does not satisfy the need of a notice to the employer.'
In the case presently before this Court, the record shows that the employer received one telephone call from the claimant's wife on the morning subsequent to his heart attack, which was sustained at home. The substance of that call is as follows:
'* * * and I spoke to Bob Thomas, who answered the telephone and told him Charles had been ill the night before, and that the doctor said he had a heart attack, and that he was in the hospital.' (Govt.Ex. 1, Tr. p. 142, testimony of Mrs. Duell on cross-examination.)
There is no evidence that any further notice was given, and nothing was offered to refute the plaintiffs' contention that they received nothing else until January of 1957 at which time the claimant filed a formal claim. The heart attack occurred on January 31, 1956.
Also, the record shows that Mr. Duell, the claimant, received compensation known as 'a non-occupational sick benefit.' As a matter of record, these checks were sent to Mr. Duell through his employer, Good Impressions, Inc. (Tr. p. 248). Mrs. Duell testified that 'he received a sick benefit allotted him for thirteen weeks.' (Tr. p. 144) The normal conclusion to be drawn by a reasonably prudent employer from the evidence before him, and as briefly stated above, is that the employee had suffered an illness not due to his occupation and for which he was being compensated. This would negate any thought the employer would have that the ill employee was going to assert a claim under the Workmen's Compensation Law.
With regard to the lack of written notice, the deputy commissioner found that 'the employer, having such knowledge, was not prejudiced by the lack of such written notice.' This Court is aware of the general principles that the findings of fact of a deputy commissioner are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole, that they are presumed to be correct, and that even if the evidence permits conflicting inferences, the inference drawn by the deputy commissioner is not subject to review and will not be reweighed. However, there was no notice of any type that a work-connected injury, or illness, had been suffered until January 25, 1957, or almost a full year after the illness occurred, on which date the claimant filed a formal claim. One of the purposes of the notice requirement is to give 'protection to the employer and the insurer, so that they may be enabled (1) to investigate an accident at the earliest possible moment and thereby obtain such evidence as may be necessary to defeat false or fraudulent claims; and (2) to correct conditions that may have caused the accident, thereby decreasing the risks incident to, and improving the conditions of employment generally.' Bethlehem Steel Co. v. Parker, supra (72 F.Supp. 37). As stated above, one of the purposes of the notice statute is to afford the employer an opportunity for prompt investigation, and this would necessarily include prompt medical examinations and treatment. This is true no matter what the nature of the injury or illness, but in a case such as this it is all the more important because of the nature of the illness, namely heart trouble. As shown by the record in this case, changes in the condition of a claimant may occur from day to day, and the longer the delay in examining the person, the more difficult it becomes to ascertain his condition on the day the illness occurred. Thus, it becomes evident that when a person asserts a claim under the Workmen's Compensation Law, the employer or his insurance carrier should be afforded a prompt opportunity to examine the claimant at the earliest possible time -- especially when conditions of the heart are involved. Thus, in the present case, it is apparent as a matter of law that the employer and insurer were deprived of the 'protection' referred to above.
Accordingly, the motion of the defendant for summary judgment is hereby denied, and the plaintiffs' motion for summary judgment is hereby granted. Counsel will submit appropriate order.
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