210 A.D. 560 | N.Y. App. Div. | 1924
On November 27, 1920, Charles M. Bell while employed by George H. Fraser in supervising the installation of machinery received very serious injuries which resulted in the dislocation of his right shoulder joint and a compound fracture of the right humerus with a resulting infection which caused the permanent loss of use of ninety-nine per cent of his right arm. A schedule award has been made under subdivision 3 of section 15 of the Workmen’s Compensation Law, the rate being fixed at $20 per week covering a period from the date of his injury to October 30, 1926, being ninety-nine per cent of the full amount of time allowed by such schedule. The total amount awarded, is $6,177.60 and is commuted to $5,257.10 assuming that forty-one weeks of compensation had been previously paid to claimant, that being the length of time that the claimant was actually out of employment.
Four appeals have been taken, but the questions raised are all involved in the matters brought up for review under the appeal from the award of June 10, 1924, as set forth in the findings and rulings under date of July 22, 1924. Two objections are made. The first is as to a lump sum. award on the theory that the testimony does not justify it. The language.of the statute which allows the award to be made in a lump sum and commuted from periodical
In Adams v. N. Y., Ont. & Western R. Co. (175 App. Div. 714) the court says: “ The exception must be ‘ in the interest of justice ’ and should not depend on the whim or caprice of the claimant or the employer, nor should it depend on an arbitrary ruling of the Commission. Each case should be considered by itself and in each case it should" be apparent that there is some circumstance or some feature thereof which differentiates it from the general rule and makes it apparent that such differentiation is 1 in the interest of justice.’ ” (See, also, Mandelblatt v. Auswaks, 207 App. Div. 73; Sperduto v. N. Y. City Interborough R. Co., 186 id. 145.) The rule as to sufficiency of evidence in Matter of Hansen v. Turner Construction Co. (224 N. Y. 331) should be applied in a case of this kind to determine what is “ the interests of justice.’’
The second proposition is that the employer should be bursed to the extent of $250 per month for salary advanced >.j him to claimant during the time the claimant was out of work, to wit, from November 27, 1920, to June 21, 1921. The record shows that the payments made were not as compensation but were made as salary. There is nothing to show that the employer ever considered that the payments so made were to be treated as advancements of compensation. His assistant testified that the employer did not expect any moneys to be returned. The authority of his assistant, however, to make such a statement is questioned and properly so. The claimant testified that he had an independent agreement with the employer for reimbursement. The statute in force at the time of the accident and which controls in this case is section 20-a of the Workmen’s Compensation Daw of 1914, as added by chapter 168 of the Laws of 1915, and further amended by chapter 629 of the Laws of 1919, which provided that the employer or insurance carrier might at his option advance any sum or sums of money under conditions provided in such law. The statute also provided that “ any employer who has made an advance payment under this section shall be entitled to be reimbursed by his insurance carrier out of an unpaid instalment or instalments of compensation due.” No compensation can be due until an award is made.
The award should be reversed and the matter remitted to the State Industrial Board, with costs against said Board to abide the event.
All concur.
Award reversed and matter remitted to the State Industrial Board, with costs against said Board to abide the event.
See Workmen’s Compensation Law of 1914, § 25, as amd. by Laws, of 1919, chap. 629; since amd. by Laws of 1921, chap. 540, and now Workmen’s Compensation Law of 1922, § 25.— iR®p.