Sokolowski v. Bank of America

• Decision Date: 17 January 1933
• Citation: 184 N.E. 492,261 N.Y. 57
• Parties: SOKOLOWSKI v. BANK OF AMERICA et al.
• Court: New York Court of Appeals Court of Appeals

261 N.Y. 57

184 N.E. 492

SOKOLOWSKI

v.BANK OF AMERICA et al.

Court of Appeals of New York.

Jan. 17, 1933.

Proceeding under the Workmen's Compensation Law by Witold Sokolowski, claimant, opposed by the Bank of America, employer, and the AEtna Life Insurance Company, insurance carrier. From a judgment (234 App. Div. 903, 254 N. Y. S. 349; 235 App. Div. 749, 255 N. Y. S. 930), reversing an award of the State Industrial Board for compensation, and dismissing the claim, the Board appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Third department.

John J. Bennett, Jr., Atty. Gen. (Joseph A. McLaughlin and John R. O'Hanlon, both of New York City, of counsel), for appellant.

Frank L. Ward, of Syracuse, for respondents.

KELLOGG, J.

On July 26, 1920, the claimant, while in the course of his employment, sustained accidental injuries, arising out of his employment. The injuries comprised fractures of the leg, elbow, and shoulder, and bruises of the hand, arm, and head. The employer continuedto pay claimant's wages until about March 25, 1921. On May 23, 1921, an award, consisting of $20 a week for the previous eight weeks, was made in favor of claimant, and the case was continued. The award did not in terms classify the disability, yet it was clearly an award for temporary total disability. It was total because based upon the full weekly wage of claimant before the accident rather than upon reduced wages earned by him thereafter; it was temporary, because made to cover a temporary period already elapsed; it contained no provision for future compensation. Many similar awards, at the same rate, covering all intervening periods, were subsequently made prior to September 15, 1922.

On the last-mentioned date the Industrial Board canceled all previous awards, reclassified the disability as permanent partial, and made these awards: A schedule award of $20 per week for 144 weeks for 50 per cent. of loss of use of left leg; an award of $20 per week for 104 weeks for 33 1/3 per cent. loss of use of the right arm; and an award of $20 per week for 78 weeks for 25 per cent. loss of use of the left arm. The total award was for 326 weeks of disability, less 112 weeks already paid, or 214 weeks. Payments were made under this award until the 214 weeks had elapsed, and the carrier had made payment of $6,520 for the full 326 weeks. On November 11, 1930, the Industrial Board canceled all previous awards, and made new awards as follows: An award of 111 1/2 weeks for total disability from July 26, 1920, the date of the accident, to the 15th day of September, 1922, the date of the schedule awards, as for a total disability, at the rate of $20 per week; an award, under section 15, subdivision 3, paragraph v (formerly u), of the Workmen's Compensation Law (Consol. Laws, c. 67), of 420 5/6 weeks, from the 15th day of September, 1922, to date, at $10.75 per week, to cover the claimant's reduced earning capacity, figured at 50 per cent. less than normal. It has been held that this award involved a reclassification of disabilities which the board was forbidden to make.

Chapter 557 of the Laws of 1927 introduced into section 15 of the Workmen's Compensation Law a new subdivision, known as subdivision 6-a, which, as amended (by Laws 1931, c. 292), now reads: ‘The board may, within three years from the date of accident, upon its own motion, or on application of any party in interest, reclassify a disability upon proof that there has been a change in condition, or that the previous classification was erroneous and not in the interest of justice.’ The clear implication is that no reclassification can be made unless accomplished within three years of the date of the accident.

The Compensation Law specifies four classes of disability and no more. They are: Permanent total disability, temporary total disability, permanent partial disability, and temporary partial disability. Section 15. A disability may not be shifted from any one of these classes to any other unless it be done within the three-year period. Matter of Schaefer v. Buffalo Steel Car Co., 250 N. Y. 507, 166 N. E. 183. In this case, on the 11th of November, 1930, the board revoked its award of a specified number of weeks for the percentage loss of use of a leg, a left arm, and a right arm, and made an award for reduced earnings under section 15, subdivision 3, par. v. This was not a reclassification, for the schedule award of September 15, 1922, and the award of November 11, 1930, for reduced earnings under subdivision 3, par. v, revising the prior award, both constituted awards for injuries falling within the class of a permanent partial disability. This was the precise holding in Matter of Schaefer v. Buffalo Steel Car Co., supra, where an award, as for a schedule disability, was modified, and an award for reduced earning capacity, under subdivision 3-u (now v) was made. On the other hand, an instance of a forbidden reclassification may be found in Matter of Vincent v. Allerton House Co., 256 N. Y. 522, 177 N. E. 25, for there an award for a percentage loss of an eye, classed as a permanent partial disability, under section 15, subdivision 3, was modified to constitute an award for a temporary loss of both eyes, classed as a temporary total disability under section 15, subdivision 2. While we hold that there has been here no prohibited reclassification, it does not follow that the award was proper.

Provision is made, in subdivision 3 of section 15, for awards to be granted for the loss of various members, such as an arm or leg, or for a percentage loss of use of these members, constituting an equivalent loss. Compensation is to be awarded on the basis of 66 2/3 per cent. of full wages, and to be paid during a given number of weeks, as arbitrarily stated in a schedule, which sets opposite each member the particular number of weeks during which, for its loss, compensation will...