233 A.D. 440 | N.Y. App. Div. | 1931
After the appeal was taken in this case amended findings were made. It is stipulated that the appellants present but two propositions:
1. That the Industrial Board must rescind the award for serious facial disfigurement for $1,500, previously made and paid, and give credit to the appellants for such amount against the award for decreased earnings.
2. That the Industrial Board has failed to give the proper credit for earning capacity as required by the authorities.
The first question arises under subdivision 3 of section 15 of the Workmen’s Compensation Law. This subdivision has not been changed in any respect material here, except that a new paragraph has been inserted. (Laws of 1929, chap. 301.) This new paragraph is lettered “ u ” and the old paragraph u has been relettered v.
The accident happened in 1919. Schedule awards had been made for loss of one eye and for facial disfigurement. These awards were paid. Thereafter the case was opened and further hearings had, after which the award now appealed from was made under the old paragraph u. In this award the former award for loss of one eye was rescinded and the carrier was credited with the amount paid. The Board refused to rescind the facial disfigurement award. Thus arises the first question.
The facial disfigurement award should be rescinded and the carrier credited with the $1,500 allowed. Subdivision 3 of section 15 is the authority for all awards classified as “ permanent partial disability.” It covers all the awards that may be made for loss or loss of use of members of the body, together with the old paragraph u providing for “ other cases.” It reads as follows: “ In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the Board on its own motion or upon application of any party in interest.” This paragraph covers all cases in this class of disability which cannot be fully compensated by separate schedule awards. An award for serious facial disfigurement under paragraph t of subdivision 3 may be made in connection with other awards for loss or loss of use of members under any paragraph of this subdivision. But such award may not be made in case of permanent total disability. (Matter of Sweeting v. American Knife Co., 226 N. Y. 199; Clark v. Hayes, 207 App. Div. 560; affd., 238 N. Y. 553.) Nor may such award
We, therefore, conclude that the employer and carrier should be credited with the amount of the award made and paid for facial disfigurement.
The second objection applies to the first item of the award only, covering the period from July 10, 1919, to October 1, 1922, a period of 168 3 /6ths weeks at the rate of $15 per week, the maximum compensation that in 1919 could be made. (Workmen’s Comp. Law, § 15, subd. 5, as amd. by Laws of 1917, chap. 705.) The claimant was totally disabled from July 10, 1919, to April 1, 1921.
The award was properly made, except that the award for facial disfigurement should have been rescinded and the amount paid thereunder should have been deducted from the total award.
The award should be reversed and the matter remitted for further consideration in accord with this opinion.
All concur.
Award reversed, with costs against the State Industrial Board to abide the event, and matter remitted for further consideration in accord with the opinion.