Opinion
October 20, 1954.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
Appeal by employer and its carrier from an award of death benefits. The award directed the payment of death benefits by appellants in the first instance, with a right of reimbursement after the first 104 weeks from the Special Disability Fund created by section 15 (sub. 8) of the Workmen's Compensation Law. Appellants contend that they should not be required to pay even the first 104 weeks, and that, since more than seven years had elapsed since the date of disablement and more than three years had elapsed since the last payment of compensation by them, The Fund for Reopened Cases should be liable for death benefits under section 25-a. Decedent was disabled by silicosis on February 1, 1942. Under the formula then existing under old article 4-A of the Workmen's Compensation Law, a ceiling of $3,900 prevailed, which appellants paid, making the last payment on January 29, 1945. Pursuant to chapter 598 of the Laws of 1951, effective June 1, 1951, the board made an award of disability compensation payable from the Special Disability Fund created by section 15 (subd. 8). Payments were continued to decedent's death from silicosis on January 23, 1952. Such payments constituted a "payment of compensation" under section 25-a. ( Matter of Pushkarowitz v. Kramer, 275 App. Div. 875, affd. 300 N.Y. 637. ) By chapter 431 of the Laws of 1947, article 4-A was repealed, and section 15 (subd. 8, par. [ee]) was enacted, under which this award for death benefits was made. Since decedent was totally disabled from silicosis prior to July 1, 1947, and died after that date, the award was proper. The death claim was a separate and distinct claim which arose at death. ( Matter of Burcia v. St. Joseph Lead Co., 283 App. Div. 1124; Matter of Jankowski v. American Magnesium Corp., 283 App. Div. 840.) Award unanimously affirmed, with costs to the Workmen's Compensation Board.