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Buccheri v. Ward

Decided: April 29, 1955.

VINCENT WILLIAM BUCCHERI, PETITIONER-APPELLANT,
v.
MONTGOMERY WARD & COMPANY, RESPONDENT-APPELLEE



Duffy, J.c.c.

Duffy

This is an appeal by petitioner from a dismissal of his claim by the Division of Workmen's Compensation, Department of Labor and Industry. Primarily, the issue is one of jurisdiction and the effect to be accorded a determination by the Workmen's Compensation Board of the State of New York covering the same accidental injury as is here litigated.

Petitioner was a resident of Elmhurst, New York, at the time of the occurrence under review. He testified that six years earlier he had been engaged to work in the stock department of respondent company in its New York City office located at 75 Varick Street. The contract of employment was entered into in New York. At the time of the accident, he had been promoted and was serving in the job of assistant

buyer of night wear. His duties required him to call on various manufacturers in the metropolitan area to expedite deliveries. Most frequently, he called upon manufacturers within the New York city limits but, "about ten or twelve times, more or less" a year, he visited fabricators in New Jersey. While on such a mission in New Jersey he sustained the injuries presently considered. Petitioner continued to reside in New York at the time the present petition was filed. He has also continued his employment with respondent in its New York office.

On November 14, 1952, while travelling in his own car on the New Jersey Turnpike en route to Bridgeton, New Jersey, to call upon a supplier of merchandise, petitioner's automobile was struck and damaged by a car which had been proceeding in his rear. The accident occurred in Kearny, New Jersey. He immediately notified his superior in the New York office of the occurrence, including his personal injuries, and was advised to return home and place himself under a doctor's care. Petitioner remained at home for 2 1/2 weeks under the care of physicians, during which time he received full salary from the respondent. The company also paid for the required medical services.

On December 11, 1952 petitioner filed a claim for compensation, based upon the above accident, with the Workmen's Compensation Board, State of New York. He testified that this was done at the suggestion of a Mr. Madden, a lawyer employed in the legal department of respondent. Subsequently, upon receipt of a notice of hearing, he wrote to the Compensation Board, again, he said, at the suggestion of Mr. Madden, and advised that "* * * I wish to have this claim closed pending the result of my claim against third party."

The complete file of the proceedings, Case No. 15227609, between the present petitioner and the present respondent, in the Workmen's Compensation Board, State of New York, was received in evidence. The file shows that on March 9, 1953 a hearing on petitioner's claim occurred before Referee Otto Schneppel. The claimant did not appear nor did

anyone appear on his behalf. T. W. Madden appeared as counsel for the employer. The following is a stenographic transcript of the proceedings:

"THE REFEREE: Claimant has returned his notice of hearing saying that he received his full wages during the period of disability and requesting that this file be closed pending the outcome of his third party action.

MR. MADDEN: He was out from November 18th to December 1. I have a C-4 dated December 3rd which says tenderness of all the cervical vertebrae and dorsal vertebrae, neck stiffness and painful.

THE REFEREE: Make findings of accident, notice and causal relation for an injury to spine. Award from November 18, 1952 to December 1, 1952 at $32.00 per week and the case is ...


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