Schaefer v. Buffalo Steel Car Co.

• Decision Date: 23 April 1929
• Citation: 166 N.E. 183,250 N.Y. 507
• Parties: SCHAEFER v. BUFFALO STEEL CAR CO. et al.
• Court: New York Court of Appeals Court of Appeals

250 N.Y. 507

166 N.E. 183

SCHAEFER

v.BUFFALO STEEL CAR CO. et al.

Court of Appeals of New York.

April 23, 1929.

Proceeding for compensation under the Workmen's Compensation Law by Henry Schaefer, employee, opposed by the Buffalo Steel Car Company, employer, and another. From an order (225 App. Div. 839, 232 N. Y. S. 870), affirming an order of compensation by the State Industrial Board, the opponents appeal by permission.

Affirmed.Appeal from Supreme Court, Appellate Division, Third Department.

Clarence B. Tippett, of New York City, for appellants.

Merritt N. Baker, of Buffalo, for respondent claimant.

Hamilton Ward, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent State Industrial Board.

POUND, J.

Claimant received a schedule award for temporary partial disability due to loss of the use of an arm, 202.8 weeks disability at $20 per week, total $4,056. Workmen's Compensation Law (Cons. Laws, c. 67), § 15, subd. 3, par. s. The disability period expired on or about August 9, 1925, when this award had been paid in full. Thereafter the case was reopened, and, it appearing claimant was suffering from combined injuries to both arm and back, an award was made for permanent partial disability under paragraph u of the same subdivision of section 15, which reads as follows: ‘u. Other cases. In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the board on its own motion or upon application of any party in interest.’

The award dated from the time of the accident, and the employer and insurance carrier were credited on such award with all payments made under the schedule award. A schedule award for temporary partial disability is for a definite limited period of weeks, but under the omnibus clause (u), covering multiple injury cases, the compensation is payable during the continuance of the partial disability. Appellants contend that the commission was without power to make the award.

Workmen's Compensation Law, § 123, provides: ‘§ 123. Jurisdiction of department to be continuing. The power and jurisdiction of the department over each case shall be continuing, and it may, from time to time, make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.’

This section has been given a broad and liberal construction. The State Industrial Board after making an award as compensation for an injury, may reopen the case at any time and make a further award when in its opinion the ends of justice require such action (Matter of Eggleston v. Shinola Co., 229 N. Y. 622, 129 N. E. 933,Matter of Tolloid v. A. W. Hopeman & Sons Co., 240 N. Y. 550, 148 N. E. 700), subject to such limitations as may be found elsewhere within the statute.

Appellants urge that such a limitation is found in Workmen's Compensation Law, § 22, which at the time of the award in question read as follows: ‘§ 22. Modification of award. Upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, the board may at any time review any award, decision or order, and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter, and shall state its conclusions of fact and rulings of law, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys already paid, except that an award for increased wages under subdivision five of section fourteen may be made effective from date of injury.’ The reference to increased wages under subdivision 5 of section 14 deals with the method of arriving at the average weekly wages of employees who were minors when injured.

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