Opinion
February 17, 1960
Appeal by the employer and its carrier from a decision and award of the Workmen's Compensation Board. The deceased employee sustained an industrial accident on January 31, 1946 which resulted in the amputation of his right leg. A schedule award of 288 weeks for 100% loss of the right leg was made and subsequently modified by adding thereto an award for 10 weeks' temporary total disability for a protracted healing period. On September 17, 1949 the decedent sustained a consequential accident resulting in the amputation of his left leg. The Referee thereafter rescinded the previous award and made a tentative award pending determination of the periods of total and partial disability. On February 20, 1954 the decedent died. A claim for death benefits by the widow was disallowed and the question of her right to an award for the decedent's disability before death was then raised. A schedule award for 100% loss of both legs plus an award for the protracted healing periods was then made and this award was affirmed by the board. The appellants rely on subdivision 1 of section 15 Work. Comp. of the Workmen's Compensation Law which provides that the "Loss of * * * both legs * * * shall, in the absence of conclusive proof to the contrary, constitute permanent total disability." Since there is here a lack of any evidence to the contrary the statute requires that the decedent's condition should have been classified as permanent total disability after the loss of his second leg. The respondent attempts to support the award on the basis of section 15 (subd. 3, par. u) but by its very terms that subdivision only applies in cases "not amounting to permanent total disability". Likewise, subdivision 4-a of section 15 only provides for awards for protracted temporary total disability in cases where such condition exists in conjunction with permanent partial disability. Such was the situation in Matter of McCarty v. United States Trucking Corp. ( 255 App. Div. 741, affd. 281 N.Y. 704) which the respondent cites to support the award made here. Furthermore, the fact that the award there made after the employee's death cannot be used to support the award in the present case for there such an award could properly have been made during the employee's lifetime. The Referee, the board and the respondent here mention the fact that since the first award for 100% loss of the right leg had been rescinded the decedent's disability had not been classified at the time of his death. However, since subdivision 1 requires that the disability here be classified as permanent total, the fact that no classification was made before death is not a justification for making a different classification after death. Thus after the date of the second amputation the claimant's condition should have been classified as permanent total disability and the award from that time should be for permanent total disability to the time of his death (230 weeks). This leaves for consideration the amount of the award for the period between the first accident and the second amputation. It would seem that the award originally made for this period was the proper one. That is, a schedule award of 288 weeks plus the protracted total disability which was set at 10 weeks. Decision and award reversed and matter remitted to the Workmen's Compensation Board, with costs to appellants against the board. Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.