Opinion
September 28, 1949.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ.
Appeal by a self-insured employer from an award of disability compensation. Claimant was employed at appellant's paper mill and in addition to his regular duties he was chief of the fire brigade in the employer's plant. He was injured while fighting a fire at the plant. It is the contention of the appellant that claimant, at the time, was acting as a member of a municipal volunteer fire company and not in his capacity as an employee of the appellant. As to this issue, only a question of fact is involved. Claimant never filed a claim for compensation but nevertheless he participated in the proceedings before the Workmen's Compensation Board. Appellant failed to object to claimant's failure to file a claim at the first hearing before the Referee at which all parties in interest were present, and hence as a matter of law the objection must be deemed to have been waived. (Workmen's Compensation Law, § 28). Award unanimously affirmed, with costs to the Workmen's Compensation Board.