Claim of Hester v. Antoniette

Appeal by the employer and carrier from an award of $9,017.05 covering the period from July 11, 1927, the date of the accident, to May 8, 1936, less the amount previously paid which was $3,500. The appellant raises no question as to the injury or the propriety of an award, but contends that it should be paid under section 25-a of the Workmen’s Compensation Law from the Special Fund. Claimant has received two lump sum payments, the last following a hearing held on January 25, 1932. From the discussion of counsel and the claimant it was then assumed that the injury should be classified as temporary partial and further that under subdivision 5 of section 15, in force at the date of the accident, $3,500 was the greatest amount that could be paid. The lump sum payment of that date together with former payments aggregated that amount. By the award appealed from claimant was determined to be permanently totally disabled. Extending the two lump sum payments as prescribed in section 25-a after the amendment (Laws of 1935, chap. 482, in effect April 25, 1935) the period would end September 10, 1932. The ease was opened on May 24, 1935, and if the amendment applies, the award is properly made against the carrier and not against the Special Fund. Thus substantially we have the same question presented as in Matter of Tipton v. Lang’s Bakery, Inc. (250 App. Div. 696). This case was decided inMay, 1937, by this court. It was affirmed by the Court of Appeals in October, 1937 (275 N. Y. 572), and thereunder the decision and award should be reversed and the matter remitted to the State Industrial Board to make an award against the Special Fund, 824 with costs against the Board. Decision and award reversed, and matter remitted to the State Industrial Board to make an award against the Special Fund, with costs against the Board. Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ., concur.