Opinion
May 11, 1949.
Appeal from Workmen's Compensation Board.
The sole question presented on this appeal is whether the record contains evidence of causally related disability after July 22, 1947. Claimant was employed as a counterman and short-order cook in the employer's restaurant. On December 25, 1944, while working for his employer there he was assaulted by several unidentified men. As a result he sustained accidental injuries consisting of multiple lacerations over the scalp and skull, injuries to the fingers of both hands, a fracture of the middle finger of the left hand, together with dizziness and headaches. He was awarded compensation on April 4, 1945, May 13, 1946, September 12, 1946, March 21, 1947, April 25, 1947, and July 24, 1947, for total disability and subsequent partial disability resulting from his injuries. These awards embraced various periods of disability from December 26, 1944 to July 22, 1947. These awards were paid. On July 21, 1947, when the last of the above awards were made the referee directed the carrier to continue payments to claimant. The carrier failed to comply with that direction and has made no payment to claimant after July 22, 1947. At a hearing held on February 16, 1948, the award under review was made for the period between July 22, 1947, and February 17, 1948. The appellants applied to the board for a review of this case and for a rescission of the award. The board after reviewing the case found that the evidence sustained the referee's decision. It affirmed the referee's decision and assessed a penalty of $25 against the carrier pursuant to the provisions of section 25 Work. Comp. of the Workmen's Compensation Law on the ground that the application was made on frivolous grounds for purposes of delay. On this appeal the appellants challenge the award on the issues of causal relation and the propriety of the $25 award. There is ample evidence to support the finding of the board that the claimant's disability was causally related to the accident. This court is of the opinion that the assessment of the $25 penalty imposed by the board against the carrier is incorrect and unjustifiable and is an arbitrary determination of the board. The proof does not sustain the determination that the application was either frivolous or made for the purpose of delay. Award affirmed, with costs to the Workmen's Compensation Board, but the $25 penalty is reversed on the law and disallowed. Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ., concur.