161 N.E. 324 | NY | 1928
This appeal requires the interpretation of section
"In case of the death of an injured employee to whom there was due at the time of his, or her death any compensation *42 under the provisions of this chapter, the amount of such compensation shall be payable to the surviving wife or husband, if there be one, or, if none, to the surviving child or children of the deceased under the age of eighteen years, and if there be no surviving wife or children, then to the dependents of such deceased employee or to any of them as the Commission may direct. An award for disability may be made after the death of the injured employee."
The amount of compensation here payable to the surviving wife must not be confused with the death benefit allowed by section
A schedule of compensation is provided by section 15, subdivision 3 of which applies to permanent partial disability. It reads: "In case of disability partial in character but permanent in quality the compensation shall be sixty-six and two-thirds per centum of the average weekly *43 wages and shall be paid to the employee for the period named in this subdivision, as follows:"
Then follows an enumeration of the number of weeks for which such compensation shall be provided for various lost members of the body. Attention should be given to the narrow limitations of the cases specified in subdivision 3. Numerous injuries to employees for which compensation is allowed do not constitute the permanent partial disability therein described. When an award has been made, let us say, for a lost arm, the amount will be 66 2/3 per cent of the average weekly wages of the employee for 312 weeks. If he were getting $12 a week, he would receive $8 a week for this period. Suppose, however, that he should die of a disease before the period expired. What would become of the award? To whom would it be payable? This is covered in the next subdivision, subdivision 4, the "effect of award," which reads: "An award made to a claimant under subdivision three shall in case of death arising from causes other than the injury be payable to and for the benefit of the persons following:" who are the wife, husband or children.
The reason why this section is limited to death arising from causes other than the injury is because the widow or the dependent child would have a claim for death benefits under section 16 if the injury caused the death. When the injury, however, has not caused death, the award of weekly payments for this limited class of injury, permanent partial disability, may be continued for the wife and child. In other words, the weekly payments do not end with death.
How do these provisions of the Workmen's Compensation Law apply to the facts of this case? Anton Sienko, sixty-nine years of age, was employed as a messenger by Bopp Morgenstern, manufacturing opticians in Brooklyn, N.Y. On December 11, 1922, while crossing Nostrand avenue at Fulton street, Brooklyn, in the course of his employment, he was struck by an *44 automobile and injured. On May 19, 1923, he filed an election with the Industrial Board to sue the third party, the owner of the automobile. Having brought such action, it was pending at the time of his death on the 18th of July, 1925.
The notice of election with claim for compensation for any deficiency constituted a claim for compensation made within the one-year limitation of section
As Anton Sienko died from causes unrelated to the accident sustained by him, the widow had no claim for a death benefit. She did claim, however, compensation which was due to him under the law because of his total disability to work from the date of the accident, December 11, 1922, until the date of his death, July 18, 1925. The board allowed this award, fixing compensation at the rate of $8 a week for 135 5/6 weeks, amounting to $1,086.67.
The Appellate Division has reversed this award and dismissed the claim. One of the reasons assigned was that the death referred to in section 33 means death resulting from the injury, reference being made to section 2, subdivision 8, which reads: "`Death' when mentioned as a basis for the right to compensation means only death resulting from such injury." The death of Anton Sienko is not the basis for his widow's right to compensation. The basis of her claim is his injury for which he would have been entitled to compensation and an award during his life. It is now payable to her instead of to him because of his death. Death is not the basis of the claim or right to compensation, but the reason or basis for change in beneficiary. Subdivision 8 refers to death benefits. The basis for the right to compensation as a death benefit must be a death resulting from the injury. *45
The reason the words "death arising from causes other than the injury" were used in subdivision 4 of section 15 has already been stated. There is no need of continuing the weekly award where the death results from the injury as there is then a claim for a death benefit. Where, however, the death arises from causes other than the injury, the weekly award payment might end with death, and the widow receive nothing but for this section. Section 33, however, deals with a different matter altogether. It allows the widow or dependents in case of death from whatever cause the amount of a disability award which has not been paid to the injured employee in his lifetime. We think that if the word "due" in this section was limited to the bi-weekly payments in arrears referred to in section 25, the language would have been more specific.
Another objection to this award was the pending action brought by Anton Sienko against the third party, citing Matter of McKee
v. White (
Our opinion is that the award was properly made in this case under section 33 for the reasons stated, and that the order of the Appellate Division should be reversed and that of the State Industrial Board affirmed, with costs in the Appellate Division and in this court.
CARDOZO, Ch. J., POUND, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Ordered accordingly.