Tolloidv.Hopeman Sons Co.

Appellate Division of the Supreme Court of New York, Third DepartmentJun 27, 1924
209 App. Div. 719 (N.Y. App. Div. 1924)
209 App. Div. 719205 N.Y.S. 349

June 27, 1924.

William H. Foster, for the appellants.

Carl Sherman, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondents.

The Board finds that the claimant has lost seventy per cent of the use of his right foot. This finding is supported by the evidence. An award has accordingly been made for the payment of compensation for a period of 143.5 weeks as authorized by section 15, subdivision 3, d and subdivision 3, s, of the Workmen's Compensation Law. An award directing payment of compensation under the same provisions of the statute for a period of 102.5 weeks based on a loss of fifty per cent of the use of the foot was made and paid prior to the present award. The weekly rate of compensation, however, has not been changed. The award under review in reality merely extends the period of compensation from 102.5 weeks to 143.5 weeks, representing the difference between fifty per cent and seventy per cent of the use of the foot, and credit is given in the last award for payments made under the first award. The latter award does not, therefore, affect the former "as regards any moneys already paid" within the meaning of the last sentence of section 22. The method pursued herein is authorized by precedent. ( Polucci v. Norris Co., 195 App. Div. 805; Neglea v. Zimmerman Corporation, 206 id. 634.)

The award should be affirmed, with costs in favor of the State Industrial Board.

Award unanimously affirmed, with costs in favor of the State Industrial Board.