Opinion
May 7, 1952.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Decedent left no surviving wife, children or dependents, and the award was made payable to his estate. The accident happened on December 15, 1944. Decedent died on October 7, 1947, as a result of the accident. This award was made on August 6, 1951. Appellants question the wage expectancy used in fixing the rate. The determination of wage expectancy involves only a question of fact, and the record sustains the finding of the board. Section 33 of the Workmen's Compensation Law was amended (L. 1945, ch. 904, eff. April 20, 1945) permitting payments of compensation to a decedent's estate under the circumstances present here. Appellants contend that because the accident happened December 15, 1944, the amendment is inapplicable and cannot be retroactive. The amendment is applicable to any award made after its effective date, even though the accident occurred prior thereto. ( Matter of Minor v. Goetz Moving Stor. Co., 276 App. Div. 936; Matter of Basarbovich v. National House Cleaning Contractors, 275 App. Div. 1012.) The fact that the award was for a schedule loss instead of disability is of no consequence so long as the award is limited to the period from the date of the accident to the date of death. ( Matter of De Santis v. Folcaro, 243 App. Div. 838; Matter of Manning v. Stroh Wilson, 247 App. Div. 233.) Award unanimously affirmed, with costs to the Workmen's Compensation Board.