Claim of Fusco v. City of New York

This is an [863] appeal from an award made by the State Industrial Board at the rate of eight dollars per week on account of reduced earnings. The appellant claims that the decision of the State Industrial Board awarding claimant eight dollars per week as reduced earnings during the period from July 7, 1937, to November 5, 1937, is contrary to section 15, subdivision 6, of the Workmen’s Compensation Law, as amended and in effect July 1, 1937. The average weekly wages of the claimant at the time of the accident amounted to the sum of $31.73. During the period of the award now on appeal claimant earned the sum of $27.50 per week, except for the first three days of the first week of said period. The claimant testified that he lost the sum of five dollars and fifty cents per week dining the period of the award which was the difference between his weekly earnings prior to the accident and his weekly earnings during the period of the award. Pursuant to the terms of subdivision 6 of section 15 of the Workmen’s Compensation Law as it existed at the time of the accident the State Industrial Board assigned the minimum rate of eight dollars per week during the period of the award. The amendment to subdivision 6 of section 15 of the Workmen’s Compensation Law (enacted by the Laws of 1937, chap. 86) was not applicable because it was not retroactive. It affected substantial rights and did not involve merely a matter of procedure. The accident in the case at bar occurred prior to the enactment of this amendment. Before its enactment the claimant was entitled to a minimum rate of eight dollars per week, even though an award in this amount, plus the earning capacity of the claimant, exceeded the average weekly wages of the claimant at the time of the accident. (Collari v. New York State Railways, 246 App. Div. 332; affd., 272 N. Y. 656; Schultz v. Buffalo Union Furnace Co., 249 App. Div. 866.) Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Rhodes, McNamee, Crapser and Bliss, JJ.