247 A.D. 679 | N.Y. App. Div. | 1936
Claimant, a widow, appeals from a decision of the Board denying deficiency compensation. On May 7, 1920, she recovered $5,200 from a third party whose negligence caused the death of her husband. The weekly payments to which she would have been entitled under the Workmen’s Compensation Law had absorbed the amount of the settlement prior to the hearing and decision herein. The Board decided: “The claimant herein is not and will not be entitled to any deficiency compensation.” The reason assigned in the findings for this conclusion is: “An actuarial computation of the compensation for death benefits the said Henrietta Mohr, claimant, would be entitled to had she elected to take compensation and the same had been awarded and paid to her as of May 7, 1920, indicates that the actuarial value of such compensation is the sum of $4,784.19. * * * In making the said actuarial computation the factors of mortality, remarriage and interest credit at the rate of 3| per centum were used in the calculation in conformity with the rules governing actuarial procedure in computing lump sum settlements and pursuant to law. * * * The actuarial computation of compensation as aforesaid indicates that Henrietta Mohr, claimant
The claimant has the right to receive as deficiency compensation the difference “ between the amount of recovery against such other person actually collected, [here $5,200] and the compensation provided or estimated by this chapter for such case.” The statute provides that so long as disability continues a definite and stated portion of the wages shall be paid. There is no act of estimation in connection therewith. Under different circumstances like a schedule loss it is estimated that a definite number of weeks will compensate for the loss of a member. These estimations range from 15 weeks for a fourth finger to 312 weeks for an arm. (Workmen’s Compensation Law, § 15, subd. 3.) Numerous other instances where the statute estimates the compensation might be enumerated.
The award and decision should be reversed and the matter remitted to the Board for a deficiency award in accordance with the statute and this opinion.
Rhodes, McNamee, Bliss and Heffernan, JJ., concur.
Award and decision reversed, with costs to the claimant against the employer and the insurance carrier, and matter remitted to the State Industrial Board for an award in accordance with opinion.