Claim of Bilello v. A. J. Eckert Co.

Greenblott, J. This is an appeal by the claimant from a decision of the Workmen’s Compensation Board, filed August 7, 1972, which held that claimant was ineligible for benefits as of October 10, 1966. In November of 1965 claimant, a laborer, sustained an industrial head injury in the course of employment. The carrier voluntarily paid workmen’s compensation benefits to the claimant based on his injuries until May 10, 1966 when the carrier discontinued payment in reliance on a physician’s report that indicated claimant was able to return to work. The claimant decided to contest this action, but before a hearing could be held to resolve the question of continued disability, claimant was arrested on October 10, 1966 for murder, subsequently convicted, and is now serving a term of 40 years to life. The board, in a decision dated January 21, 1970, determined that any rights claimant had to compensation benefits terminated on October 10, 1966, the date of claimant’s arrest, concluding that any loss of earnings thereafter was due entirely to his incarceration and not in any part to his injury. Claimant requested the board to reconsider but by a decision filed August 7, 1972, the board adhered to its original decision and the instant appeal ensued. Previously, this court held that claimant’s sentence to life imprisonment did not preclude his pursuing his appeal on the basis that he was civilly dead pursuant to subdivision 1 of section 79-a of the Civil Bights Law (Matter of Bilello v. Eckert Co., 42 A D 2d 243). [194] The decision of the board, denying claimant benefits during his period of imprisonment upon conviction of the crime of murder on July 18, 1968, was proper. (Matter of Packard v. Sperry & Sons, 39 A D 2d 622.) However, the board’s decision denying claimant benefits from October 10, 1966, the date of his arrest, until the date of conviction, was improper. A confinement which precludes participation in the labor market is not alone sufficient to deprive a former employee who has suffered a work-related disability of his right to benefits. We so held in Matter of Papkoff v. Feldman (26 A D 2d 140) which involved a patient in a mental hospital; obviously, the claimant in Papkoff was no more in the labor market than a defendant, presumed innocent, who is awaiting trial. To deny a claimant benefits while he is incarcerated' awaiting trial is an unfair situation. It favors a defendant who is ■ capable of posting bail over one who is unable, to do so. Any rule which has the effect of predicating the right to compensation benefits .upon the ability to furnish bail presents a serious question of denial of equal protection of the laws under the Fourteenth Amendment. The determinative question should be whether or not the claimant, while in jail, ’could or could not have worked in any event because of his injury. His dependents should not be denied support and. the carrier relieved of its obligation when “ the physical and industrial disability and the loss of wage-earning capacity on which the award was bottomed still continué[s] ” (Matter of Papkoff v. Feldman, supra, p. 141). The important factual question should be whether or not the disability continues to impair wage-earning power. If claimant is no longer disabled, he is, of course, no longer entitled to benefits regardless of his criminal status. But the board in this case stated that ‘ ‘ claimant may not argue that any loss of wages while incarcerated is due to his occupational,head injury” and so far as we can discern, no evidentiary hearing took place. We, therefore, must conclude that the claimant is entitled to compensation up to the -date of conviction, unless the evidence reveals that the disability “ on which the award was bottomed ” bceased to exist at some time prior thereto. The decision should be reversed and the matter should be remanded ,for an evidentiary hearing. The decision should be reversed, without costs, and matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent herewith,