Opinion
November 22, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by the employer and carrier from a decision and an award of the Workmen's Compensation Board in favor of an adult son of decedent based on a finding that he was a totally and permanently incapacitated dependent. Appellants concede that the record presents no factual dispute. They state the issue here to be "Whether as a matter of law, the feeblemindedness of the claimant classifies him as a dependent totally blind or physically disabled child within the meaning of Subdivision 1-A of Section 16 of the Workmen's Compensation Law." They argue that the statutory definition of dependency bars an award to a surviving dependent adult child permanently and totally disabled solely by reason of his mental deficiency. This identical and only argument was made and rejected in Matter of Fluhr v. Henry J. Lunde, Inc. ( 241 App. Div. 898, affd. 265 N.Y. 531; see, also, Matter of Ruhland v. Urban Milling Co., 4 A.D.2d 721.) Matter of Lynch v. New York R.T. Corp. ( 245 App. Div. 884), principally relied on by appellants, is distinguishable. The issue there was whether a mentally retarded son was employable. The board disallowed his claim on the ground that "it had not been proven that his disablement is total and permanent." This court affirmed the decision of the board stating: "The appeal by the son * * * presented a question of fact, and the Board's decision should be sustained." Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.