Claim of Schwab v. Emporium Forestry Co.

167 A.D. 614, 153 N.Y.S. 234, 1915 N.Y. App. Div. LEXIS 8236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1915
• Status: Published

Opinions

Smith, P. J.:

The claimant was injured on July 6, 1914, by having his right hand severed at the wrist., His left hand was amputated in the year 1892. The question certified is whether the claimant is entitled to compensation for permanent total disability under subdivision 1 of section 15 of the Workmen’s Compensation Law, or for compensation as for the loss of one hand under subdivision 3 of said section.

If a man has two hands he is presumably a more efficient worker and can receive higher wages than if crippled by the loss of one hand. The method of payment of compensation for the loss of one hand is to allow sixty-six and two-thirds per centum of the salary which the injured party was earning for 244 weeks. If the injured party had two hands and were earning $20 a week, if he lost one hand he would recover $3,253.33. Another workman having lost one hand before entering the employment would be receiving say $10 a week for less efficient service. If that workman lost the second hand in the service, if the claim of the insurance carrier is right, he would recover for 244 weeks at $10 a week, or $1,626.61. So that for the loss of the second hand, which had its double value on account of the previous loss of the first hand, under this system he would be entitled to recover only half as much as for the loss of the first hand. This anomalous result would indicate that the Legislature could not so have intended. By subdivision 1 of section 15 the loss of both hands shall presumably constitute permanent total disability. As compensation for that permanent total disability he is to receive sixty-six and two-thirds per cent of the average weekly wages that he is then earning. As the man with one hand is presumably earning less wages than a man with two hands, to allow for the loss of the second hand as a permanent total disability, a percentage of the weekly wage that he was then earning would be in complete harmony with compensation to one who had lost both hands by the accident, who receives his sixty-six and two-thirds per cent upon the greater wages that he was earning at the time of the accident.

Moreover, this reasoning accords with the rule which seems to be laid down in subdivision 6 of section 15, which provides that the fact that an employee has suffered previous disability shall not preclude him from compensation for a later injury, “but in determining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury. ” Oases are cited upon the Attorney-General’s brief which indirectly lend support to his contention that the claimant has the right to recover as for a permanent total disability. But the decision may well rest upon the logic of the situation, in view of the fact that the amount of compensation depends upon the weekly wage, and the weekly wage is affected by his crippled condition at the time of the accident.

In answer to the question certified, we decide that claimant is entitled to recover as for permanent total disability.

All concurred (Kellogg J., in result in memorandum), except Woodward, J., dissenting.