Claim of Meszaros v. Goldman

New York Court of Appeals

Claim of Meszaros v. Goldman

121 N.E.2d 232, 307 N.Y. 296, 1954 N.Y. LEXIS 956

CourtNew York Court of Appeals

DecidedJuly 14, 1954

StatusPublished

Cited by19 cases

This text of 121 N.E.2d 232 (Claim of Meszaros v. Goldman) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Meszaros v. Goldman, 121 N.E.2d 232, 307 N.Y. 296, 1954 N.Y. LEXIS 956 (N.Y. 1954).

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Opinions

Desmond, J.

The question of law common to both these appeals is this: when a worker suffers two or more separate accidental injuries with resulting “ temporary partial ” disabilities, both compensable under the Workmen’s Compensation Law, and the board finds that the ultimate disability was caused in part by one or more of the earlier accidents, but the earnings of the claimant, after, and as decreased by, the latest accident, are nonetheless higher than they were at the time of the earlier contributing accident or accidents, is the latest award to be paid by the employer and carrier as of the time of that latest accident or is it to be charged in part against the earlier employer and carrier (or earlier employers and carriers) although, as against claimant’s earnings prior to the time (or times) of the earlier contributing accident (of accidents), his earnings subsequent to the latest accident show no diminution? That question seems to have had contradictory answers, by the Appellate Division, in these two cases. We think that, the statutory language and the apparent plan of the statute, and [299]*299a fair reading thereof, call for the second of those alternative answers.

There is no need for a close analysis of the facts in the two cases before ns. Claimant Meszaros had two compensable disablements, one in 1942 and the other in 1945. The board, on adequate proof, held that one third of his disability, after 1945, was due to the 1942 accident, and two thirds to the 1945 accident. Claimant’s earnings were found to have been: $19.23 per week before the first mishap, $59.90 weekly just before the second one; and (we will refer to this item again at a later point in this opinion) after the 1945 accident, it was found, his average wages were “ reduced to a sum which would entitle him to a compensation rate of $12 [per week] ”. The board, therefore, ordered the 1942 employer and carrier to pay Meszaro $4 per week, and ordered their 1945 opposite numbers to contribute $8 per week.

Braunstein, claimant in the second of our cases, had seven different compensable accidental injuries: three in 1946 and 1947 while he worked for respondent Friendly with respondent Century as insurance carrier; one in early 1947 (respondent General was then the employer and respondent Bankers the carrier) and three more in 1947, while Braunstein was working for appellant Independent (appellant Public Service was Independent’s carrier). Here the finding (not disputed) was that the first of those seven accidents caused 25% of the final disability, and each of the other six accidents caused 12%% thereof. Just before the first series of three injuries, Braunstein’s wages were $65 per week; between that time and the fourth occurrence, he earned $55.20 per week, and while working for the latest employer (Independent) before the latest disablement, his pay was $100 per week. Thus he lost (as the immediate result of the seventh injury), the difference between $100 and $65.57 per week (the amount he earned after the last accident) or $34.43, and so his award, being two thirds of that latter amount (Workmen’s Compensation Law, § 15, subd. 7) was $22.95 per week. Although the board made a finding (as we read it) that Braunstein’s disablement after the latest (September 5, 1947) accident was caused by all seven accidents, it made the $22.95 award against the latest employer and carrier, only, apparently [300]*300because claimant’s earnings of $65.57 after September 5, 1947, were higher than they had been at or before any of the six earlier accidents.

It is settled law (Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146, 149) that an award should be apportioned when the accidental injury which is the occasion for that award is in part caused by an earlier compensable accident. Subdivision 5 of section 15 of the act says that ‘ ‘ In case of temporary partial disability resulting in decrease of earning capacity, the compensation shall be two-thirds of the difference between the injured employee’s average weekly wages before the accident and his wage earning capacity after the accident ”. Subdivision 6 of that same section, fixing maxima and minima for awards, imposes a condition that “ In no event shall compensation when combined with decreased earnings * * * exceed the amount of wages which the employee was receiving at the time the injury occurred.” Beading together those rules of law, we conclude that, in circumstances like those of the two cases presently on appeal, the latest awards should be charged proportionately against all the employers-carriers. Only thus can fairness be accomplished. We read the word “ injury ” in subdivision 6 (supra) as referring, necessarily, to the latest “ injury ” when there have been two or more. So read, the above-quoted language of subdivision 6 means no more than this: total compensation, for disability caused by several compensable accidental injuries, plus earnings after the latest injury, cannot exceed earnings just before the latest injury. If any other interpretation be made of subdivision 6, the anomalous result will follow that the employer-carriers, as of the time of earlier contributing accidents, will be relieved of all money contributions, simply because the claimant’s wages have been on the rise. Such a construction can be, and should be, avoided (see, illustratively, Matter of Anderson v. Babcock & Wilcox Co., supra; and Matter of Zuk v. McGuire Bros., 277 App. Div. 956, motion for leave to appeal denied 301 N. Y. 817),

In Matter of Meszaros, there is another possible answer, also, to appellant’s contentions, and another basis for affirming the award. That claimant’s earnings, of about $35 per week, after the second of his injuries, came from his business, or self-[301]*301employed occupation, of vending soap. It is conceded that the Meszaros case record does not show how much of this $35 represents earnings from his own efforts, and how much is in the nature of business profits or investment income. Thus the Meszaros record does not show that the $12 weekly award plus present wage earning capacity exceeds the wages earned at the time of either the first or the second accident (see Matter of Kaminsky v. Socony-Vacuum Oil Co., 275 App. Div. 1013, affd. 301 N. Y. 528).

In the Meszaros case, the order should be affirmed, with costs

In the Braunstein case, the order should be reversed, without costs, and the matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent with this opinion.

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Desmond, J.

The question of law common to both these appeals is this: when a worker suffers two or more separate accidental injuries with resulting “ temporary partial ” disabilities, both compensable under the Workmen’s Compensation Law, and the board finds that the ultimate disability was caused in part by one or more of the earlier accidents, but the earnings of the claimant, after, and as decreased by, the latest accident, are nonetheless higher than they were at the time of the earlier contributing accident or accidents, is the latest award to be paid by the employer and carrier as of the time of that latest accident or is it to be charged in part against the earlier employer and carrier (or earlier employers and carriers) although, as against claimant’s earnings prior to the time (or times) of the earlier contributing accident (of accidents), his earnings subsequent to the latest accident show no diminution? That question seems to have had contradictory answers, by the Appellate Division, in these two cases. We think that, the statutory language and the apparent plan of the statute, and [299]*299a fair reading thereof, call for the second of those alternative answers.

There is no need for a close analysis of the facts in the two cases before ns. Claimant Meszaros had two compensable disablements, one in 1942 and the other in 1945. The board, on adequate proof, held that one third of his disability, after 1945, was due to the 1942 accident, and two thirds to the 1945 accident. Claimant’s earnings were found to have been: $19.23 per week before the first mishap, $59.90 weekly just before the second one; and (we will refer to this item again at a later point in this opinion) after the 1945 accident, it was found, his average wages were “ reduced to a sum which would entitle him to a compensation rate of $12 [per week] ”. The board, therefore, ordered the 1942 employer and carrier to pay Meszaro $4 per week, and ordered their 1945 opposite numbers to contribute $8 per week.

Braunstein, claimant in the second of our cases, had seven different compensable accidental injuries: three in 1946 and 1947 while he worked for respondent Friendly with respondent Century as insurance carrier; one in early 1947 (respondent General was then the employer and respondent Bankers the carrier) and three more in 1947, while Braunstein was working for appellant Independent (appellant Public Service was Independent’s carrier). Here the finding (not disputed) was that the first of those seven accidents caused 25% of the final disability, and each of the other six accidents caused 12%% thereof. Just before the first series of three injuries, Braunstein’s wages were $65 per week; between that time and the fourth occurrence, he earned $55.20 per week, and while working for the latest employer (Independent) before the latest disablement, his pay was $100 per week. Thus he lost (as the immediate result of the seventh injury), the difference between $100 and $65.57 per week (the amount he earned after the last accident) or $34.43, and so his award, being two thirds of that latter amount (Workmen’s Compensation Law, § 15, subd. 7) was $22.95 per week. Although the board made a finding (as we read it) that Braunstein’s disablement after the latest (September 5, 1947) accident was caused by all seven accidents, it made the $22.95 award against the latest employer and carrier, only, apparently [300]*300because claimant’s earnings of $65.57 after September 5, 1947, were higher than they had been at or before any of the six earlier accidents.

It is settled law (Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146, 149) that an award should be apportioned when the accidental injury which is the occasion for that award is in part caused by an earlier compensable accident. Subdivision 5 of section 15 of the act says that ‘ ‘ In case of temporary partial disability resulting in decrease of earning capacity, the compensation shall be two-thirds of the difference between the injured employee’s average weekly wages before the accident and his wage earning capacity after the accident ”. Subdivision 6 of that same section, fixing maxima and minima for awards, imposes a condition that “ In no event shall compensation when combined with decreased earnings * * * exceed the amount of wages which the employee was receiving at the time the injury occurred.” Beading together those rules of law, we conclude that, in circumstances like those of the two cases presently on appeal, the latest awards should be charged proportionately against all the employers-carriers. Only thus can fairness be accomplished. We read the word “ injury ” in subdivision 6 (supra) as referring, necessarily, to the latest “ injury ” when there have been two or more. So read, the above-quoted language of subdivision 6 means no more than this: total compensation, for disability caused by several compensable accidental injuries, plus earnings after the latest injury, cannot exceed earnings just before the latest injury. If any other interpretation be made of subdivision 6, the anomalous result will follow that the employer-carriers, as of the time of earlier contributing accidents, will be relieved of all money contributions, simply because the claimant’s wages have been on the rise. Such a construction can be, and should be, avoided (see, illustratively, Matter of Anderson v. Babcock & Wilcox Co., supra; and Matter of Zuk v. McGuire Bros., 277 App. Div. 956, motion for leave to appeal denied 301 N. Y. 817),

In Matter of Meszaros, there is another possible answer, also, to appellant’s contentions, and another basis for affirming the award. That claimant’s earnings, of about $35 per week, after the second of his injuries, came from his business, or self-[301]*301employed occupation, of vending soap. It is conceded that the Meszaros case record does not show how much of this $35 represents earnings from his own efforts, and how much is in the nature of business profits or investment income. Thus the Meszaros record does not show that the $12 weekly award plus present wage earning capacity exceeds the wages earned at the time of either the first or the second accident (see Matter of Kaminsky v. Socony-Vacuum Oil Co., 275 App. Div. 1013, affd. 301 N. Y. 528).

In the Meszaros case, the order should be affirmed, with costs

In the Braunstein case, the order should be reversed, without costs, and the matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent with this opinion.

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121 N.E.2d 232, 307 N.Y. 296, 1954 N.Y. LEXIS 956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-meszaros-v-goldman-ny-1954.

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