Marhoffer v. Marhoffer (In re Zurich Gen. Accident & Liab. Ins. Co.)

Decision Date01 May 1917
Citation220 N.Y. 543,116 N.E. 379
PartiesMARHOFFER v. MARHOFFER. In re ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding for workmen's compensation by August Marhoffer, employé, opposed by Alexander Marhoffer, employer, and the Zurich General Accident & Liability Insurance Company, Limited, insurer. An award by the state Industrial Commission was affirmed by the Appellate Division (161 N. Y. Supp. 527), and the employer and insurer appeal. Reversed, and portion of employé's claim dismissed.

Chase, Hogan, and Andrews, JJ., dissenting.

John N. Carlisle, of Albany, for appellants.

Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

POUND, J.

On November 27, 1915, claimant's right hand was injured in the course of his employment. The second finger was cut off, and the thumb and index finger were severely lacerated. The injuries to the thumb and finger might constitute temporary total disability under paragraph 2 of section 15 of the Workmen's Compensation Law (Consol. Laws, c. 67), for which he would be entitled to compensation at the rate of 66 2/3 per cent. of his average weekly wages, to be paid to him during the continuance thereof, not to exceed $3,500. The loss of the second finger constituted permanent partial disability, for which, under paragraph 3 of section 15, he would be entitled to compensation at the same rate for 30 weeks.

[1] The state Industrial Commission, having found that claimant was totally disabled for 10 weeks from the time of the accident, awarded him compensation therefor for 8 weeks; no compensation, except for treatment and care, being allowed for the first 2 weeks (sections 12, 13). The Commission also awarded him compensation for the further and additional period of 30 weeks for the loss of the second finger, to begin at the expiration of the 8-week period. The question is whether the Commissionproperly awarded consecutive compensation, first during temporary disability, and thereafter for the full period for the permanent injury. The law is silent on the subject. The provision in paragraph 3 of section 15, that ‘the compensation for the foregoing specific injuries [loss of hand, arm, foot, leg, etc.] shall be in lieu of all other compensation,’ plainly means ‘all other compensation for each of the foregoing specific injuries,’ and does not by its terms exclude compensation for other injuries as defined in other paragraphs.

In some other jurisdictions more than a single period of compensation is specifically provided for. The New Jersey act (P. L. 1911, p. 134) provides (section 14a, as added by P. L. 1913, p. 307) that compensation for all classes of injuries shall run consecutively and not concurrently, first 2 weeks' medical and hospital services and medicines, then compensation during temporary disability, then compensation consecutively for each permanent injury, the total number of weekly payments not to exceed 400. The Massachusetts act (St. 1911, c. 751, § 11, as amended by St. 1912, c. 571) provides that in case of the specified injuries (loss of hand, foot, etc.) the amount named shall be paid in addition to all other compensation. The Illinois act (Laws 1913, p. 341, § 7e) also provides that compensation for the specified injuries shall be in addition to the compensation during temporary total disability. Nothing in our law so provides, or permits the Commission to begin the period of disability at any later date than the fifteenth day of disability.

[2][3][4] The theory of the New York law is not indemnity for loss of a member or physical impairment as such, but compensation for disability to work made on the basis of average weekly wages. “Compensation' means the money allowance payable to an employé' (section 3, par. 6). But one rate of compensation, 66 2/3 per centum of the average weekly wage, and one period of compensation, are provided for in any given case. Subject to the limitations contained in the act, in cases of total disability, whether adjudged to be permanent or temporary, compensation is paid during the continuance of the disability. In case of statutory permanent partial disability, such as the loss of a hand, arm, foot, finger, etc., the compensation is paid for the period named in the schedule. The award is to compensate for loss of earning power. New York Central Railroad Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667;Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514, 519,109 N. E. 600, L. R. A. 1916A, 403, Ann. Cas. 1916B, 276. ‘The compensation awarded the employé is not such as is recoverable under the rules of damages applicable in actions founded upon negligence. It is based on loss of earning power. * * *’...

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