Opinion
November 16, 1955.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
Claimant was a manicurist engaged in a beauty parlor. She slipped and fell in the course of employment on April 30, 1949, sustaining injuries from which the board found she was totally disabled from May 3, 1949, to October 31, 1949, and partially disabled from October 31, 1949, to March 25, 1954. At the time of the accident, the liability of the employer and carrier for temporary partial disability was the sum of $4,000 (Workmen's Compensation Law, § 15, subd. 5). But in 1949 the Legislature amended this subdivision to enlarge the liability to $5,500 (L. 1949, ch. 65) effective July 1, 1949. The employer and carrier on appeal contend that since the accident occurred before the effective date of the amendment, their liability to the claimant for temporary partial disability is governed by the statute effective at the time of the accident and that this liability may not exceed $4,000. It will be seen that the period of partial disability began, and all partial disability was found to have occurred, after the effective date of the 1949 amendment. We think that the amendment governs the limit of liability for temporary partial disability occurring after its effective date, even though the original accident which gave rise to total as well as a later partial disability, had occurred before the amendment. While there are some decisions which may seem to point in a different direction ( Matter of Likepities v. Donner Steel Co., 278 App. Div. 443; Matter of Fusco v. City of New York, 256 App. Div. 862, affd. 280 N.Y. 826), the weight of authority in a situation such as the one before us seems to indicate that the limit of liability was enlarged by the 1949 amendment. This would seem especially to be so in a case where all the temporary partial disability, the subject with which the amendment dealt, occurred after its effective date. The case leading most strongly in this direction is Matter of Schmidt v. Wolf Contr. Co. ( 269 App. Div. 201, affd. 295 N.Y. 748). There the maximum weekly compensation was increased after the accident and after the payment of compensation had begun for the accident; but the increase was held applicable for the period after the effective date of the amendment of the statute even though the accident had occurred and the payment of compensation at the lower rate had begun before the amendment became effective. It was in part on the authority of this case that it was decided here in Matter of Wood v. Queen City Neon Sign Co. ( 282 App. Div. 106, 111) that the amendment permitting the filing of the claim arising from an occupational disease within ninety days of the knowledge of the claimant of the nature of the disease applied to a case in which the exposure and the contracting of the disease had occurred before the amendment of the statute. On the authority of Matter of Schmidt v. Wolf Contr. Co. ( supra) this court in 1946 held that a statute allowing an award to be made for facial disfigurement applied to such a disfigurement occurring before the effective date of the statute ( Matter of Di Martino v. Mountain Valley Water Co., 270 App. Div. 968). Matter of McCann v. Walsh Constr. Co. ( 282 App. Div. 444, affd. 306 N.Y. 904) illustrates another aspect of the problem. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.