Opinion
March 11, 1920.
Philip J. O'Brien [ Ainsworth, Carlisle, Sullivan Archibald of counsel], for the appellants.
Charles D. Newton, Attorney-General, E.C. Aiken, Deputy Attorney-General, and Bernard L. Shientag, counsel for the State Industrial Commission, for the respondents.
The only question raised on this appeal is whether the Commission had any basis, in the evidence, to award the claimant as large an amount as was awarded to him. On the 9th day of March, 1918, the date of the accident, the claimant was working for the appellant, employer, as stock clerk and was receiving two dollars a day, twelve dollars a week. By agreement between the claimant and his employer it was provided that he should receive two-thirds of that weekly wage, seven dollars and sixty-nine cents, subject to approval of the State Workmen's Compensation Commission. Upon examination by a physician it was found that as a result of the injury complete ankylosis of the ankle joint had taken place — and stating further "the defect is equivalent to the loss of use of the leg from a vocational point of view." The examination further disclosed that this young man was not physically equipped for heavier work than he was doing and that fourteen or fifteen dollars per week would be about the increased wages he would earn. The claimant being a minor the Commission exercised the power given it under section 14, subdivision 5, of the Workmen's Compensation Law to find, as a matter of fact, he would be entitled to an increase of wages to eighteen dollars a week; based upon that weekly wage claimant's weekly award, seven dollars and sixty-nine cents, as provided by the agreement, was raised to eleven dollars and fifty-four cents weekly award, lacking only a few cents of his full weekly wage when injured. The record discloses no evidence upon which such increase could be made. One of the Commissioners made such suggestion or estimate; but what took place on the examination falls short of evidence with probative force. It appears that the claimant is not inclined to do any thing to help himself or learn some useful trade that would enable him to earn a living, giving as a reason that if he did they would stop paying the compensation. Those so inclined should be made to feel that they can get on account of injury only what, by competent evidence, the law allows. ( Cohen v. Rothstein Pitofsky, 176 App. Div. 35.)
The award should be reversed and the matter remitted to the Commission for further consideration.
All concur, except H.T. KELLOGG, J., dissenting.
Award reversed, and matter remitted to the Commission for further consideration.