Claim of Manning v. Stroh & Wilson, Inc.

Hill, P. J. The claimant, Lawrence Manning, is the surviving brother of Lionel Manning who was injured while working in his regular employment, but who died from causes other than the injury. The claimant appeals from a decision of the Board that he was not dependent upon his deceased brother and that as matter of law he is not entitled to an award. There is no evidence to sustain the finding that he was not dependent. [234] Lionel, an employee of Stroh & Wilson, Inc., was injured on October 29, 1931. He died from causes other than the injuries on May 8, 1933. As a result of the injuries, he was totally disabled for forty-two and one-half weeks and sustained injuries to his shoulder, arm and left ankle which caused a twenty-five per cent permanent loss of the use of the left arm and a fifteen per cent permanent loss of use of the left foot. The referee allowed the claimant twenty-five dollars a week for. thirty-two weeks’ total disability, and for an additional ten and one-half weeks for protracted temporary total disability and fixed twenty dollars a week as the rate for the period of the schedule loss. This decision was reversed by the Industrial Board for the reason stated in the opinion: “ Furthermore, even had we made a finding in his favor on the question of dependency, still he would not have been entitled to receive payment of this schedule award pursuant to section 15, subdivision 4-d [subd. 4, if d], as he was more than eighteen years of age.” The injured employee died after the expiration of the forty-two and one-half weeks of total disability and before the end of the one hundred and eight weeks during which he would have been compensated for his schedule loss. Section 15, subdivision 4, of the Workmen’s Compensation Law does not apply. It gives the right to certain named beneficiaries to receive the full amount of a schedule award when the injured employee dies prior to the expiration of the period covered by the award and from causes other than the injuries. (Matter of Sienko v. Bopp & Morgenstern, 248 N. Y. 40; Matter of Bogold v. Bogold Bros., Inc., 218 App. Div. 676; affd., 245 N. Y. 574.) Section 33 of the Workmen’s Compensation Law does apply. “ In case of the death of an injured employee to whom there was due at the time of his or her death any compensation under the provisions of this chapter, the amount of such compensation shall be payable * * * 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 entire award for total disability and part of the schedule award was due at the time of the death of Lionel. In the Sienko Case (supra) the opinion, after discussing the conditions under which section 15, subdivision 4, does apply, says: “ 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 [235] would have been more specific ” (p. 45). A disability award was there involved. In the Bogold Case (supra) the claimant was a dependent sister twenty-eight years of age, and the award was a schedule award that had been commuted to a lump sum prior to the death of the injured employee. The legislative intent as to the application of section 15, subdivision 4, is discussed in the opinion in the Appellate Division at page 678, and the application of section 33 on the following pages. Matter of Keenholts v. Bayer Co. (263 N. Y. 77) deals with a schedule award. “Assuming that a schedule award was made during the lifetime of the claimant, upon the death of the claimant, resulting from the injuries, the award was supplanted by the death benefits and all the widow could claim was the portion, if any, of the award unpaid down to the time of claimant’s death.” The only authority for such a payment would be section 33, for subdivision 4 of section 15 applies only when the claimant has died “ from causes other than the injury.” The portion of the decision which determines as a fact that claimant was not a dependent should be reversed upon the ground that there is no evidence to sustain it. The portion of the decision which determines as matter of law that payment of the award which was due at the time of the death of Lionel may not be made to claimant should be reversed and the matter remitted to the Board to make an award to the date of Lionel’s death. Crapser, Bliss and Heffernan, JJ., concur; Rhodes, J., dissents, with an opinion.