Surdi v. Premium Coal and Oil Co., Inc.

• Decision Date: 09 August 1979
• Citation: 419 N.Y.S.2d 335,71 A.D.2d 964
• Parties: In the Matter of the Claim of Sam SURDI, Appellant, v. PREMIUM COAL AND OIL CO., INC. et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 335

419 N.Y.S.2d 335

71 A.D.2d 964

In the Matter of the Claim of Sam SURDI, Appellant, v. PREMIUM COAL AND OIL CO., INC. et al., Respondents Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Aug. 9, 1979.

Jacowitz & Severance, P. C., Brooklyn (Burton J. Jacowitz, Brooklyn, of counsel), for appellant.

Joseph F. Manes, Croton-on-Hudson, for respondents.

MEMORANDUM DECISION.

Appeal from a decision of the Workers' Compensation Board, filed December 14, 1977.

Claimant sustained a work-related injury, which was classified a permanent partial disability, and received compensation at the rate of $56.77 per week. He thereafter applied for a lump sum settlement and, on December 22, 1976, the board approved a non-schedule adjustment in the sum of $13,000. However, payment was not made until January 31, 1977. Claimant then sought a penalty for failure to pay the award within 10 days and the referee fixed the penalty due him at 20% Of the $13,000 non-schedule adjustment (see Workers' Compensation Law, § 25, subd. 3, par. (c)). Following an objection by the employer and its carrier, the board modified the penalty to 20% Of $227.08, representing claimant's reduced earnings for the four-week period from January 1, 1977 to January 31, 1977, and this appeal ensured.

In our view, there should be an affirmance. The approval by the board of an application for a non-schedule adjustment permitting the payment of a lump sum must be founded on conclusions that the claimant's future earning capacity and continuance of disability cannot be ascertained with reasonable certainty, and that such action is fair and in his best interest (Workers' Compensation Law § 15, subd. 5-b). In this case, the board has further determined, for the purpose of a penalty, that compliance with its approval does not fully constitute "payments of compensation according to the terms of the award * * * " (Workers' Compensation Law, § 25, subd. 3, par. (c)). Although we are not unmindful of certain judicial expressions tending to a contrary result (see Matter of Hart v. Perkins, 258 N.Y. 66, 179 N.E. 261; Matter of Hart v. Perkins, 258 N.Y. 61, 179 N.E. 259; Matter of Badarie v. Charles B. Gols, Inc., 25 A.D.2d 79, 267 N.Y.S.2d 447, mot. for lv. to app. den. 17 N.Y.2d 423, 270 N.Y.S.2d 1026, 217 N.E.2d 41; Matter of Dodson v. S.A. Healy Co., 275 App.Div. 130, 89 N.Y.S.2d 410, mot. for lv. to app. den. 300 N.Y. 760, 88 N.E.2d 534), none of those opinions directly addressed the quoted language, whereas here it is the board which has interpreted the applicable statutory provision. Had the settlement not been approved, it is well to remember that the "award" would have remained one of reduced earnings at the weekly rate of $56.77. We conclude, therefore, that the board construed the statute in a reasonable manner and in accordance with legislative intent (see Matter of Howard v. Wyman, 28 N.Y.2d 434, 322 N.Y.S.2d 683, 271 N.E.2d 528).

Decision affirmed, without costs.

GREENBLOTT, KANE and MAIN, JJ., concur.

MAHONEY, P. J., and MIKOLL, J., dissent and vote to reverse in the following memorandum by MAHONEY, P. J.

MAHONEY, Presiding Justice (dissenting).

Once the board made the lump sum non-schedule adjustment to settle the claim and closed the case, the agreed upon sum of $13,000 became the award and represented "payments of compensation" as contemplated by the applicable penalty provisions of the Workers' Compensation Law (Workers' Compensation Law, § 25, subd. 3, par. (c), see Matter of Hart v. Perkins, 258 N.Y. 66, 179 N.E. 261; Matter of Hart v. Perkins, 258 N.Y. 61, 179 N.E. 259; Matter of Badarie v. Charles B. Gols, Inc., 25 A.D.2d 79, 267 N.Y.S.2d 447, mot. for lv. to app....