Opinion
January 14, 1937.
Present — Rhodes, Acting P.J., McNamee, Crapser, Bliss and Heffernan, JJ.
The employer and insurance carrier have appealed from a penalty award of ten per cent. On September 21, 1929, while claimant was engaged in the regular course of his employment, he fell from a scaffold and sustained serious injuries which resulted in total permanent disability. The weekly wages of claimant at the time of his injuries were forty-four dollars. An award was made directing appellants to pay claimant twenty-five dollars a week for the rest of his life. Appellants complied with the terms of that award and paid compensation accordingly from September 23, 1929, to June 17, 1934. From June 18, 1934, to February 2, 1936, appellants instead of paying at the rate of twenty-five dollars a week paid at the rate of eight dollars and eighty-seven cents a week. After a hearing the Board assessed a penalty award of twenty per cent against appellants. Upon appeal ( 245 App. Div. 874) this court reversed that determination and held that if a penalty were imposed it should not exceed ten per cent. After the order of reversal the Board after a hearing fixed the penalty at ten per cent. That award is the subject of this review. The appellants took no appeal from the original award and made no application for review until July 11, 1934. The employer in the first report of injury certified that claimant's wages were forty-four dollars per week. The record establishes that appellants repeatedly consented to awards at a compensation rate of twenty-five dollars a week. The appellants have attempted to reduce the compensation of claimant without the intervention of the State Industrial Board. They have entirely failed to excuse their default and the determination of the State Industrial Board is correct. Award unanimously affirmed, with costs to the State Industrial Board.