184 N.E. 492 | NY | 1933
On July 26, 1920, the claimant, while in the course of his employment, sustained accidental injuries, arising out of his employment. The injuries comprised fractures of the leg, elbow and shoulder, and bruises of the hand, arm and head. The employer continued to pay claimant's wages until about March 25, 1921. On May 23, 1921, an award, consisting of $20 a week for the previous eight weeks, was made in favor of claimant, and the case was continued. The award did not in terms classify the disability, yet it was clearly an award for temporary total disability. It was total *59 because based upon the full weekly wage of claimant before the accident rather than upon reduced wages earned by him thereafter; it was temporary, because made to cover a temporary period already elapsed; it contained no provision for future compensation. Many similar awards, at the same rate, covering all intervening periods, were subsequently made prior to September 15, 1922.
On the last-mentioned date the Industrial Board canceled all previous awards, reclassified the disability as permanent partial, and made these awards: A schedule award of $20 per week for 144 weeks for fifty per cent of loss of use of left leg; an award of $20 per week for 104 weeks for thirty-three and one-third per cent loss of use of the right arm; and an award of $20 per week for 78 weeks for twenty-five per cent loss of use of the left arm. The total award was for 326 weeks of disability, less 112 weeks already paid, or 214 weeks. Payments were made under this award until the 214 weeks had elapsed, and the carrier had made payment of $6,520 for the full 326 weeks. On November 11, 1930, the Industrial Board canceled all previous awards, and made new awards as follows: An award of 111 1/2 weeks for total disability from July 26, 1920, the date of the accident, to the 15th day of September, 1922, the date of the schedule awards, as for a total disability, at the rate of $20 per week; an award, under section 15, subdivision 3, paragraph v (formerly u), of the Workmen's Compensation Law (Cons. Laws, ch. 67), of 420 5/6 weeks, from the 15th day of September, 1922, to date, at $10.75 per week, to cover the claimant's reduced earning capacity, figured at fifty per cent less than normal. It has been held that this award involved a reclassification of disabilities which the Board was forbidden to make.
Chapter 557 of the Laws of 1927 introduced into section
The Compensation Law specifies four classes of disability and no more. They are: Permanent total disability, temporary total disability, permanent partial disability, and temporary partial disability. (§ 15.) A disability may not be shifted from any one of these classes to any other unless it be done within the three-year period. (Matter of Schaefer v. Buffalo Steel CarCo.,
Provision is made, in subdivision 3 of section 15, for awards to be granted for the loss of various members, such as an arm or leg, or for a percentage loss of use of these members, constituting an equivalent loss. Compensation is to be awarded on the basis of sixty-six and two-thirds per cent of full wages, and to be paid during a given number of weeks, as arbitrarily stated in a schedule, which sets opposite each member the particular number of weeks during which, for its loss, compensation will run. It was formerly held that where several members were lost, the weeks allotted to one member could not be added to the weeks allotted to another, so that continuous compensation during the aggregate of all the weeks might be had. (Marhoffer v.Marhoffer,
Provision is also made in subdivision 3 for "other cases" of a permanent partial disability. This is paragraph v (formerly u), reading 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 *62 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." Obviously, the phrase "in all other cases" signifies that the provisions of the paragraph shall apply only in cases where the injuries received are not confined to a specific member or specific members. By clear implication, if the schedules are sufficient completely to cover the disabilities, paragraph v may not be employed to extend the periods of weeks provided for thereby.
In the case of the award of November 11, 1930, now under consideration, the memorandum of decision by E.N. Edwards, a member of the Industrial Board, states: "The former finding that the extent of claimant's disability caused by his accident of July 26, 1920, is confined to the permanent defects of his left leg, left arm and right arm is hereby confirmed." On the 13th of November, 1930, notice of the award of November 11th, signed by Frances Perkins, Industrial Commissioner, was served upon the parties. This notice states: "After careful review of the papers on file, the action of the Board under date of 11.11.30 was to find that the extent of claimant's disability caused by the accident of July 26, 1920, is confined to the permanent defects of his left leg, left arm, and right arm." Notice of appeal having been served upon the Industrial Board, that body, on June 30, 1931, in belated compliance with section
The order should be affirmed, with costs against the State Industrial Board.
POUND, Ch. J., CRANE, LEHMAN, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Order affirmed, etc.