the arm. Thereafter, a deputy commissioner awarded compensation to him against his first employer for impaired earnings, such compensation to run after his second accident and during the period covered by the compensation from the second employer for the permanent partial disability consisting in loss of one-half the arm's use. The viewpoint of the deputy, as clearly stated by the second employer in his brief, was that the employee's "partial disability at the time he entered the service of the second employer after his first accident necessitated the acceptance of smaller wages than before, which smaller wages resulted in his receiving less compensation for the second injury." The deputy saw an injustice to the employee in this but admitted that the case was peculiar. Upon the appeal, the Attorney-General conceded that the award for impaired earnings probably should have ended at date of the second accident. The Appellate Division reversed the award and remitted the case to the Commission saying that there was no evidence that disabilities from the first accident continued during the second employment: Carnella v. Roberts Co., Case No. 46312, July 9, 1919; 190 App. Div. 923, Dec. 29, 1919.

August 1, 1918, a carpenter fell through an opening in a floor to a floor below suffering severe injuries. After he had been out two weeks and four days he went back to work. He was unable to work full time and capacity, according to his physician, because a discase of the spinal cord had been lighted up by his fall. A statement from his employer showed that from August 1, 1918, till January 11, 1919, his earnings had been almost $500 less than they would have been at his rate of earning before the accident, which the Commission found to be $32.33 per week. The Commission awarded him $15 per week from August 1, 1918, to January 9, 1919, apparently for full disability, and $3.60 per week from January 9, 1919, till July 31, 1919, for reduced earning capacity. Upon appeal, the Appellate Division modified the award to allow for $40 advance payment by the employer and, as so modified, affirmed it, with opinion as follows:

HUMPHREYS V. CHEVROLET MOTOR CO., 191 App. Div. 4, March 3, 1920.

JOHN M. KELLOGG, P. J.: The evidence is conflicting. If the appellants' claim is right that the claimant continued to work from August 20 to December 11, 1918, at the same wages until the job was finished, and then, at

his own request, was employed on a different job, at a less wage, but receiving the full wages of a well man, the award should not stand. But that claim is answered by the statement furnished by the employer to the employee, the contents of which was stated by Commissioner Lyon for the record. It shows that from August first to January eleventh, a period of twenty-three weeks, the claimant earned $261.55. If he had worked all the time at the same wages as before the accident, he would have received $742.90, showing a loss of wages of about $481.35 for twenty-three weeks. This would be modified somewhat by the alleged change in the wage after December eleventh. If this statement is true it discredits the defendants' witnesses and supports the claimant's contention that after the accident he was unable to do full work and did not receive full pay. After the receipt of the statement the Commission gave the appellants the right to ask for a rehearing if they could produce evidence that the figures were not correct, and no such application has been made. The Commission also stated that a letter produced from the employer gave the claimant the right to employ his own doctor. The doctors' bills are not excessive and were properly allowed. Concededly the claimant has been paid $40 on account of his disability, which should be deducted from the award. The award should be modified accordingly and as modified affirmed.

All concur. Award modified as per opinion, and as so modified affirmed.

October 8, 1918, a machinist incurred a hernia while tightening a piece of material. He refused to undergo an operation. According to a custom which had grown up in hernia cases, the theory being that an operation is the equivalent of eight weeks in cost to the insurance carrier, a deputy commissioner awarded him eight weeks compensation from October 8, 1918, to December 3, 1918, being $120, and closed the case. The Commission approved the deputy's findings. The employer appealed from the award, claiming that it should have been for twenty-one days, being thirtyfive days less the first two weeks, or, that it should have been for reduced earnings, if perchance the record should show that the employee had been earning partial wages during the period. The Attorney-General stated the Commission's custom but said that if the court should not approve of it, the claimant ought to have a full award, less part time wages earned, till the day he had gone to work at reduced earnings, and an award at reduced earnings thenceforward; that this would amount to two-thirds of his wages till November 26, 1918, less $14.40 earned by four days' work, and $6 per week for reduced earnings from November 26, 1918, onward. The Appellate Division remitted the case to the Commission for further consideration and findings: Cusick v. Wright

Martin Aircraft Corp., Case No. 226635, July 9, 1919; 191 App. Div. 933, Mar. 11, 1920.

In the case of Linklater v. Burling Engineering & Construction Co., noticed at length under the following head of malingering, the Commission made an award for more than ninety weeks upon a reduced earnings basis, in accordance with a theory that the claimant, who had not worked at all, could have earned $7.50 per week if he had tried. The relation of high war-time wages to awards for reduced earnings is touched upon in Walrath v. Standard Ship-building Corp., 5 Bul. 108, 109.

The Appellate Division has unanimously affirmed an award for reduced earnings in Miner v. Porter App. Div.-, May 5, 1920.

F. MALINGERING

Questions arise: When is an employee suffering from temporary total disability sufficiently recovered to go to work? Should an employee, not sufficiently recovered to resume the work he was doing at the time of his injury, seek and accept such other and lighter work as may be obtainable? The Commission sometimes directs an employee to go to work either at his old occupation and place of employment or at a new occupation and for a new employer. The employee may decline to go to work, in which case the employer may accuse him of malingering.

A carpenter stepped into a steam exhaust pit and burned his left leg from the knee down. The accident occurred August 16, 1916. He received compensation at $15 per week until May 3, 1917. Thereafter, for a period extending until September 20, 1918, seventy-two weeks, he received compensation at $7.50 per week, the Commission stating that this was the difference between his average weekly wage and his wage earning capacity for the period of compensation "on the theory that he could have earned $7.50 a week if he had tried." From a further award of $7.50 a week from September 20, 1918, until Febru ary 21, 1919, the employer took an appeal, declaring that the employee, an unmarried man was a malingerer, who believed that he would be able to loaf the rest of his life. The Attorney-General said that the Commission had solved the question

in a conservative way, that the employee was unable to stand upon his feet for a reasonable length of time and that a Commissioner had promised there would be no further award till the employee made a honest effort to get work. The Appellate Division affirmed the award unanimously and without opinion: Linklater v. Burling Engineering & Construction Co., Casc No. 22757, Sept. 20, 1918; 190 App. Div. 885, Nov. 12, 1919.

Remarks and replies of a claimant at a hearing of the Commission disclosed an unwillingness on his part to go to work at anything whatever though he was advised and had been given opportunity to take vocational training for occupations with which his injury, synovitis of the knee, would not interfere and which would yield him a better living than the occupation at which he had been hurt. In reversing an award to him based upon minor's expectation of wage increase the Appellate Division said:

MARKOWITZ V. WATTERS LARORATORIES, 191 App. Div. 267, March 11, 1920, in part.

It appears that the claimant is not inclined to do anything to help himself or learn some useful trade that would enable him to earn a living, giving as a reason that if he did they would stop paying the compensation. Those so inclined should be made to feel that they can get on account of injury only what, by competent evidence, the law allows. (Cohen v. Rothstein & Pitofsky, 176 App. Div. 35.)

Full text of the Markowitz opinion appears below, page 46. The Appellate Division, unanimously and without opinion, has affirmed awards in the following three cases in which the employers accused the injured workmen of malingering: Yancanckas v. Brooklyn Edison Co., Case No. 75773, Apr. 15, 1919; 190 App. Div. 885, Nov. 12, 1919; Magliola v. Huron Stevedoring Corp., Claim No. 300707, Apr. 17, 1919; 190 App. Div. 886, Nov. 12, 1919; and Brown v. Smith & Sons, Case No. 42688, May 5, 1919: 190 App. Div. 887, Nov. 12, 1919.

G. AWARD FOR A FIXED NUMBER OF WEEKS AS A VESTED INTEREST

If an injured employee dies from cause other than his accident, leaving an award under Workmen's Compensation Law, § 15, subd. 3, but partially satisfied by periodic or other pay

ment, his surviving wife (or her dependent husband) and children are entitled to receive the unsatisfied balance of the award: L. 1920, ch. 534, effective May 5, 1920. This legislation offsets the decision in Wozneak v. Buffalo Gas Co.

Upon authority of its decision in Wozneak v. Buffalo Gas Co. the Appellate Division has approved the Commission's denial of an award in Casmey v. Parks' Sons Co., Claim B-514, Dec. 20, 1918; 189 App. Div. 881, Sept. 10, 1919, two justices dissenting. Its opinions in the Wozneak case are in Bulletin 95, pages 79-84.