Claim of Kunst v. General Bronze Corp.

Appellate Division of the Supreme Court of New York

Claim of Kunst v. General Bronze Corp.

264 A.D. 494, 35 N.Y.S.2d 878, 1942 N.Y. App. Div. LEXIS 4187

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1942

StatusPublished

Cited by4 cases

This text of 264 A.D. 494 (Claim of Kunst v. General Bronze Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Kunst v. General Bronze Corp., 264 A.D. 494, 35 N.Y.S.2d 878, 1942 N.Y. App. Div. LEXIS 4187 (N.Y. Ct. App. 1942).

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Opinions

Schenck, J.

This is an appeal from an award of the State Industrial Board pursuant to article 4-A of the Workmen’s Compensation Law. Death benefits in the sum of $3,500, less payments previously made for disability, were awarded to the widow of an employee of the General Bronze Corp. who died June 30, 1941, of silicosis. The decedent had become totally disabled from silicosis by reason of bis employment on April 20, 1939.

Under section 66 of the Workmen’s Compensation Law, compensation for silicosis is based upon a scale of increasing benefits with fixed maximum compensation payable for disability and death. The maximum compensation payable under the scale set up by section 66, as amended at date of death herein, was $3,500. The maximum payable under the section on April 20, 1939, the date of disablement, was $2,200. Claimant was awarded the sum of $3,500, less payments already made on the disability scale prior to the death of decedent. Appellants contend that the maximum of $2,200, which was in effect at the date of disability, and which afforded the basis for the original award to decedent, is controlling.

The award based on the $3,500 maximum should be affirmed. The language of section 66 clearly states that in death cases “ the aggregate amount payable shall be determined by the total amount payable in the month in which disablement or death occurs.” There is no dispute but that this amount was $3,500 under the scale in the month in which death herein occurred. The fact that the lower maximum was in effect at date of disability does not operate to compel claimant to use this lower basis. Neither is the fact controlling that payments had been made on the lower basis during decedent’s life. He obviously could not know if or when he would die, so he could not take advantage of the higher benefit figure. This does not prevent his widow from so doing.

The award should be affirmed, with costs.

Crapser and Foster, JJ., concur; Bliss, J., dissents in an opinion, in which Hill, P. J., concurs.

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Schenck, J.

This is an appeal from an award of the State Industrial Board pursuant to article 4-A of the Workmen’s Compensation Law. Death benefits in the sum of $3,500, less payments previously made for disability, were awarded to the widow of an employee of the General Bronze Corp. who died June 30, 1941, of silicosis. The decedent had become totally disabled from silicosis by reason of bis employment on April 20, 1939.

Under section 66 of the Workmen’s Compensation Law, compensation for silicosis is based upon a scale of increasing benefits with fixed maximum compensation payable for disability and death. The maximum compensation payable under the scale set up by section 66, as amended at date of death herein, was $3,500. The maximum payable under the section on April 20, 1939, the date of disablement, was $2,200. Claimant was awarded the sum of $3,500, less payments already made on the disability scale prior to the death of decedent. Appellants contend that the maximum of $2,200, which was in effect at the date of disability, and which afforded the basis for the original award to decedent, is controlling.

The award based on the $3,500 maximum should be affirmed. The language of section 66 clearly states that in death cases “ the aggregate amount payable shall be determined by the total amount payable in the month in which disablement or death occurs.” There is no dispute but that this amount was $3,500 under the scale in the month in which death herein occurred. The fact that the lower maximum was in effect at date of disability does not operate to compel claimant to use this lower basis. Neither is the fact controlling that payments had been made on the lower basis during decedent’s life. He obviously could not know if or when he would die, so he could not take advantage of the higher benefit figure. This does not prevent his widow from so doing.

The award should be affirmed, with costs.

Crapser and Foster, JJ., concur; Bliss, J., dissents in an opinion, in which Hill, P. J., concurs.

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264 A.D. 494, 35 N.Y.S.2d 878, 1942 N.Y. App. Div. LEXIS 4187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-kunst-v-general-bronze-corp-nyappdiv-1942.

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