Opinion
January 9, 1952.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
This award, in a death case, was made to a widow by a referee on December 22, 1949, and made directions for payment to her in stated periodical amounts. The decision and award were filed with the board and notice given on January 16, 1950. This was a "mandatory type case" under subdivision 2 of section 27 Work. Comp. of the Workmen's Compensation Law. The board was required by that subdivision to compute "immediately" the value of the award and direct payment into the aggregate trust fund. It was, therefore, an "award under the mandatory provisions" of section 27, within the language of the rules of the board governing actuarial procedure in Aggregate Trust Fund cases. In making such an award, rule 75 provides that the carrier shall pay the compensation to the date of the award and make three biweekly payments thereafter, and the actuary in computing the amounts to be paid into the Aggregate Trust Fund shall assume such payments have been made. Rule 77 provides that if the widow remarries "between the date of the award and six weeks thereafer, when the computed amount is due and payable" the carrier shall be relieved of the requirement to pay into the fund. On January 30, 1950, the board gave further notice of the filing on that day of "a decision and award" which included the "decision and award" of December 22, 1949, notice of which had previously been given on January 16th, and which additionally directed the appellants to deposit the present value "of the award" as stated in the notice, in the Aggregate Trust Fund. The widow remarried on March 3, 1950. If this was within six weeks of "the date of the award", appellants would be relieved from the requirement to pay the commuted amount into the Aggregate Trust Fund. The board has held otherwise. The use of "the award" in subdivision 2 of section 27 seems to suggest that what is meant is the decision fixing compensation, and not the manner of its payment into the Aggregate Trust Fund which must necessarily be directed somewhat later when opportunity for actuarial computation can be had. This would mean the "award" as used in the rules referred to that made by the referee on December 22, 1949. The date of the award fixes the time within which the widow's remarriage affects the obligation to pay into the Aggregate Trust Fund. The date of the award would be the date on which it was filed and notice given by the board (§ 23). But since such notice was given January 16, 1950, the widow's remarriage March 3d did not occur within six weeks of the "date of the award" within rule 77. The notice of decision of January 30th must be regarded, not as the date of the award, but as fixing the amount and time for the payment of the commuted amount of an award previously made. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.