Hart v. Perkins
| Decision Date | 05 January 1932 |
| Citation | 258 N.Y. 61,179 N.E. 259 |
| Parties | HART v. PERKINS, Industrial Com'r, etc. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
In the matter of the application of Joseph Hart for a peremptory mandamus, requiring Frances Perkins, as Industrial Commissioner and Custodian of the State Insurance Fund, to pay a 20 per cent. penalty for delay in paying an award under the Workmen's Compensation Law by the Industrial Board. From an order of the Appellate Division (233 App. Div. 798, 250 N. Y. S. 945), reversing as matter of law an order of the Special Term, which denied the application, and granting the writ, defendant appeals.
Reversed, and order of the Special Term affirmed.
See also 179 N. E. 261; 251 N. Y. S. 408.
Appeal from Supreme Court, Appellate Division, Fourth department.
John J. Bennett, Jr., Atty. Gen. (Irving H. Lessen, of Syracuse, of counsel), for appellant.
Don Carlos Buell, of Fulton, for respondent.
Joseph Hart, the claimant, sustained an injury on or about November 15, 1925, while employed by the Shepard Construction Company, which had secured compensation to its employees in the state insurance fund. Numerous hearings were had upon Hart's claim and compensation and medical payments made on account up to March 8, 1930, when a special hearing was held at Syracuse and there decided between the parties in interest to settle all claims for the sum of $3,390, which included the sum of $500 to be paid to his attorney. The decision was filed in the office of the Department or the Bureau of the Workmen's Compensation on March 10, 1930, and received by the state insurance fund on March 11, 1930. Within ten days after the filing of the decision, and on March 19, 1930, a check for the full amount was mailed to the claimant. Measuring the ten days within which awards must be paid, pursuant to section 25 of the Workmen's Compensation Law (Consol. Laws, c. 67), from the last day of the hearings, March 8, instead of the day when the decision was filed and notice given, the claimant has sought in this mandamus proceeding to compel the Industrial Commissioner to pay him the penalty imposed by the statute of 20 per cent. of the unpaid compensation. He is not entitled to it.
The state insurance fund, created pursuant to article 5 of the Workmen's Compensation Law (section 90 et seq.), in this instance was the insurance carrier and liable for the award to be made. The fund, according to section 90, shall be administered by the Industrial Commissioner. The State Treasurer is the custodian of the state insurance fund, all disbursements being made by him upon vouchers signed by the commissioner or deputy commissioner. The Industrial Commissioner is appointed pursuant to section 10 of the Labor Law (Consol. Laws c. 31), while the Industrial Board is provided for by section 12. It is the commissioner and not the Industrial Board which administers the fund. The award in this case was made by the Industrial Board. The commissioner could not and would not issue his voucher upon the State Treasurer until he had official notice of the award, the amount thereof, and to whom payable. We look to other provisions of the Workmen's Compensation Law for the methods by which the awards are made payable. Section 25, among other things, provides as follows: ‘If the employer or his insurance carrier shall fail to make payments of compensation according to the terms of the award, within ten days thereafter, except in case of an appeal there shall be imposed a penalty equal to twenty per centum of the unpaid compensation which shall accrue to the benefit of the injured workman or his dependents and shall be paid to him or them.’ ‘According to the terms of the award, within ten days thereafter,’ means an award made and completed in accordance with law. Section 20 provides for the making of the award and the appropriate filing thereof. Within thirty days after the hearing on the claim is closed the board shall...
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