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Matter of Elling v. Ontario Co. Sheriff's Dept

Appellate Division of the Supreme Court of New York, Third Department
Nov 16, 1955
286 AD 628 (N.Y. App. Div. 1955)

Opinion


286 A.D. 628 146 N.Y.S.2d 182 Claim of Margaret ELLING (Walter Elling, deceased employee), Respondent, v. ONTARIO COUNTY SHERIFF'S DEPT., Respondent, and Special Disability Fund under Sec. 15, subd. 8, Appellant. Workmen's Compensation Board, Respondent. Supreme Court of New York, Third Department November 16, 1955.

          Carrolton A. Roberts, Canandaigua, for claimant-respondent.

         Strang, Wright, Combs, Wisers&sShaw, Rochester, Ellsworth Van Graafeiland, Rochester, of counsel, for respondent.

         John M. Cullen, New York City, for appellant.

         Jacob K. Javits, Atty. Gen., for respondent, Workmen's Compensation Board.

         Before FOSTER, P. J., and BERGAN, COON, HALPERN and ZELLER, JJ.

         COON, Justice.

         The only question presented by this appeal is whether a self-insured employer is entitled to reimbursement from the Special Fund for payments beyond 104 weeks, awarded to an elected--(as distinguished from a privately employed)--employee.

         Decedent was first elected sheriff of Ontario County in 1936. While in that office he suffered a serious automobile accident in 1940, which resulted in extensive physical injuries and a permanent heart ailment. He was thereafter elected three times. There is evidence that following this accident he regularly used a cane, was under medical care, and had to take daily rest periods, and these facts were widely published in local papers and commonly observed by the public.

         Decedent died of a heart attack on May 13, 1950, under circumstances which have been held compensable. The award for death benefits is not controverted. Reimbursement is the only issue. Appellant admits that the present circumstances would require reimbursement, after the first 104 weeks, except for the fact that decedent was elected, instead of employed by an individual or private corporation.

         This court has held that the employer's knowledge of a preexisting disability is essential to reimbursement under Section 15, subd. 8, of the Workmen's Compensation Law. Zyla v. A. D. Juilliards&sCo., 277 A.D. 604, 102 N.Y.S.2d 255. It is claimed that an electorate cannot have such previous knowledge. The Board has found, as a fact, that the electorate did have such knowledge. There is evidence to sustain such a finding. Even without such a finding there seems no sound reason for a distinction between an elected employee and a privately hired one, solely because he was elected by voters instead of employed by an individual or a board of directors.

         Section 3 of the Workmen's Compensation Law, in Group 17, subd. 1, expressly includes sheriffs and deputy sheriffs and makes them subject to the law. Section 15, subdivision 8(h) of the Workmen's Compensation Law, requires a contribution, based on their salaries, to appellant Special Fund. The entire pattern of the Workmen's Compensation Law would seem to indicate a legislative intent to subject counties to the obligations, and to entitle them to the benefits of reimbursement to the same extent as private employers. When counties are required by law to contribute to the same fund from which they new seek reimbursement, the reimbursement should not be denied solely because the employee was elected instead of privately employed. If actual knowledge of the employee's previous condition be deemed impossible solely because of the number of his employers, it should be implied by law.

         The award should be affirmed, with costs to the employer against appellant.

         Award affirmed, with costs to the employer against the appellant. BERGAN, HALPERN and ZELLER, JJ., concur.

         FOSTER, Presiding Justice (dissenting).

         I do not believe that the legislature ever intended that Section 15, subd. 8, of the Workmen's Compensation Law should apply to elected public officials. The whole purpose underlying the enactment of such legislation was to encourage employers to hire, or continue in employment, physically handicapped persons. The legislature had in mind, I think, a conventional type of employment as envisaged in common speech. I doubt very much if the ordinary person would consider an elected public official as merely an employee.

         We have held that an employer's knowledge of a pre-existing disability is essential before Section 15, subd. 8, of the statute may be applied. Zyla v. Juilliards&sCo., 277 A.D. 604, 102 N.Y.S.2d 255. In other words, that an employee must be hired, or continued in employment as a physically handicapped person. It is obviously impossible in the case of an elected public official to make such a determination, especially in a county or district where one political party has an overwhelming advantage.

         The fact that Section 3 of the Workmen's Compensation Law expressly makes sheriffs and deputy sheriffs beneficiaries under the law in case of accidental injury or death does not, ipso facto, make Section 15, subd. 8, applicable.

         I dissent therefore and vote to reverse the award and remit the claim to the Workmen's Compensation Board.

Summaries of

Matter of Elling v. Ontario Co. Sheriff's Dept

Appellate Division of the Supreme Court of New York, Third Department
Nov 16, 1955
286 AD 628 (N.Y. App. Div. 1955)
Case details for

Matter of Elling v. Ontario Co. Sheriff's Dept

Case Details

Full title:In the Matter of the Claim of MARGARET ELLING, Respondent, against ONTARIO…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 16, 1955

Citations

286 AD 628 (N.Y. App. Div. 1955)
286 App. Div. 628
146 N.Y.S.2d 182