Claim of Polucci v. Emerson Norris Co.

195 A.D. 805, 187 N.Y.S. 52, 1921 N.Y. App. Div. LEXIS 4836

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1921
• Status: Published

Opinion

Kiley, J. :

Claimant is a pattern maker, and while so engaged in the plant of his .employer at Tuckahoe, Westchester county, N. Y., on February 2, 1918, met with an accident cutting off his fourth finger and badly crushing the bone of the third finger. Employer and employee filed an agreement for compensation at fifteen dollars per week which was approved by the State Industrial Commission and an award made accordingly. The basis of this award was “ twenty-five weeks for loss of use of third finger and fifteen weeks for loss of fourth finger; total, forty weeks, and case closed.” This decision was made after a hearing had April 30, 1918. On June 1, 1920, more than two years after the previous award was .made, and with no record evidence of how the Commission was again set in motion, a physician was called in and said the injury constituted the loss of one-third of the hand. Without delay, brushing aside argument or suggestion, a decision was then and there made, as follows: “ Decision: Modify previous award to read: Eighty-one and one-third weeks at $19.23 for loss of one-third of the hand.” The first award was made under the provisions of section 15, subdivision 3, of the Workmen’s Compensation Law (as amd. by Laws of 1917, chap. 705). The modified award was made under the same section and subdivision. The carrier objects that this cannot be done. The source of power in the Commission for such procedure is found in sections 22 and 74 of the Workmen’s Compensation Law, viz.j when conditions have changed, or in the interest of justice. It is conceded in this record that there is no change in conditions. Under the provisions of section 15 {supra) there is no question but what the claimant was entitled to the award last made. Under section 74 of the Workmen’s Compensation Law I think the Commission could say that when a claimant has received less than the maximum he is entitled to, it is an injustice to him if he does not receive that amount. The reason given by the Commissioner presiding at the hearing when the last award was made was that “ what they forgot to do is to give him part of the hand.” While I do not like the informal procedure by which this result was reached, I think justice was done. Such conclusion is upheld in Beckmann v. Oelerich & Son (174 App. Div. 353) and Kriegbaum v. Buffalo Wire Works Co., Inc. (182 id. 448). The increase over fifteen dollars a week should commence at the termination and payment of the previous award (Salotar v. Neuglass & Co., 228 N. Y. 508), and as so modified should be affirmed.

All concur.

Award modified as per memorandum, and as modified affirmed.