272 N.Y. 217 | NY | 1936
In December, 1933, the claimant, while acting as a volunteer fireman, sustained a fracture of the lower end of the left radius. While he was then in the general employment of the respondent employer, the accident had no connection with the employment. On March 19, 1934, he was deemed by his physician fit to go back to work and did so. Thereafter he performed his regular duties and received his regular wages. On May 16, 1934, while threading a steel rod in the course of his employment, the claimant again broke his arm. The injury was partly a re-fracture of the lower end of the radius and partly a new fracture of the styloid process of the ulna. He was granted disability compensation for five weeks on the basis of an average weekly wage of $27.20, and the case was continued. The Industrial Board thereafter found upon sufficient evidence "that the fractures which occurred on May 16, 1934, were due both as a consequence of the first injury of December 19, 1933, and as the result of the second injury of May 16, 1934." Upon the basis of that finding and without any attempt to establish a rational proportion between "consequence" and "result" — an attempt which would have been futile — the Board modified the award so as to charge only one-half of it against the employer and carrier. Matter ofAnderson v. Babcock Wilcox Co. (
The fundamental command of the Workmen's Compensation Law is (§ 10) that "every employer subject to this chapter shall * * * secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment." That broad command is variously affected and implemented by other provisions of the act. Among them is subdivision 7 of section 15 which reads as follows: "The fact that an employee has suffered previous disability or received compensation therefor shall not preclude him from compensation for later injury nor preclude compensation for death resulting therefrom; but in determining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury, provided, however, that an employee who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability."
We are chiefly concerned with the proviso at the end. Our only guides to its meaning and scope are the circumstances under which it was enacted and the obvious limits of practical administration under the literal language. In Matter of State IndustrialCommission v. Newman (
Matter of Anderson v. Babcock Wilcox Co. (supra) is likewise inapplicable. The claimant there was awarded his full compensation. There was no contest between him and the second employer. The contest was between the *221 two employers and their carriers, as to who should pay it. The language of the opinion must be read in connection with the issue.
The orders of the Appellate Division and of the State Industrial Board should be reversed and the original award of the State Industrial Board reinstated, with costs in all courts.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur.
Ordered accordingly.