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machine under a promise of piece work rates, amounting to an increase of pay. The Appellate Division, sustaining the employer's objection, reversed the award and remitted the matter to the Commission, with opinion as follows:

VAUGHN F. BARNET LEATHER Co., 191 App. Div. 652, May 5, 1920. WOODWARD, J.: The claimant was injured while at work on a rolling machine in the Barnet Leather Company's factory, and there is no question as to the character of the injuries. The State Industrial Commission has found that the average weekly wages of Ella Vaughn was the sum of $28.84, and the award is of $16.23 per week for twenty-one weeks, and the case held open to determine later the full extent of the injury. The insurance carrier and the employer, on this appeal, contend that the finding that the average weekly wages of the claimant was $28.84 is without support in the evidence, and we agree with this contention.

The evidence of the claimant herself is that she was receiving at the time of the injury $2.50. per day, and this is corroborated by the payrolls of the Barnet Leather Company. It appears from the evidence that on the 13th of January, 1919, there was a strike of the male employees of the company; that the men who were operating the machines such as the claimant was operating at the time of her injury were being paid for piece work, and that some of them earned from $23 to $27 per week. On the 30th day of January the claimant was called from a room where she was earning between $10 and $11 per week, and was instructed in the operation of the rolling machine. After a short period of instruction she was left to operate the machine alone, and received the injuries for which the allowance is made. Aside from some vague testimony from a foreman, that so far as he knew it had been the custom in that mill to put men at piece work after a few weeks of experience, there was no evidence to show that there was any understanding on the part of the claimant or her employer that the wages should be other than $2.50 per day. The claimant did say that there was one woman working in a different department, upon a different machine, who was getting $33 per week, but the name of the woman was not disclosed, nor was there anything to indicate that this was the customary wages of employees on the class of machines on which the claimant was at work, and the undisputed testimony was that three other women, employed upon these machines, were paid not to exceed $2.50 per day. The claimant was con: cededly working at the rate of $2.50 per day; she had not had sufficient experience to be put on piece work even under the practice which prevailed among the men prior to the strike, and there is absolutely no evidence in the case from which the figures found by the State Industrial Commission can be supported. The highest figures shown by the evidence for any of the men for any sustained period of time was $25.83 per week, and the undisputed evidence is that there is now no piece work done on these machines; that none was being done at the time of the accident, and that the wages paid to the woman operatives was $2.50 per day.

So far as we can discover from a reading of the testimony the finding of the average weekly wages of the claimant is purely arbitrary; there is

no evidence to suggest or support the sum of $28.84, and the case should be sent back for correction in this regard.

The award appealed from should be reversed, and the matter remitted to the State Industrial Commission. All concur. Award reversed and matter remitted to the Commission.

D. CHANGES IN AWARDS NOT RETROACTIVE Modification of an award upon review is applicable only to the present and the future. Time past is governed by the preceding award or awards. Retroactive awards are forbidden by the final sentence of Workmen's Compensation Law, $ 22, relative to review of an award, which reads: “No such review shall affect such award as regards any money already paid." The Court of Appeals has so held in a case in which the Commission had awarded death benefits at $2.45 per week on May 21, 1917, and had increased the rate to $3.75 per week on October 16, 1918. The Commission, upon the review, had held that the insurance carrier must pay the dependent the difference between the $2.45 per week and $3.75 per week for the period from May 21, 1917, to October 16, 1918, as well as $3.75 from October 16, 1918, onward. The Appellate Division had unanimously affirmed this award. The Court of Appeals modified it to provide that the increase should not take effeet prior to October 16, 1918, and, so modified, affirmed it: Solotar v. Neuglass & Co., Death Case, No. 33580, Oct. 16, 1918; 186 App. Div. 942, May 7, 1919; — N. Y. Rep. Jan. 20, 1920.

E. TIPS AS PART OF WAGES In awarding compensation to a railway sleeping car porter the Commission counted his tips as part of his wages. The Appellate Division affirmed the award with opinion expressly approving inclusion of the tips (Bulletin 95, pp. 221, 222). The Court of Appeals affirmed the Appellate Division's order without opinion: Bryant v. Pullman Co., S. D, R., vol. 19, p. 456, Feb. 18, 1919; 188 App. Div. 311, June 20, 1919; 228 N. Y. Rep.- March 19, 1920.

F. MINOR'S EXPECTED WAGE INCREASE In the above case of Solotar v. Neuglass Co., the decision of the Court of Appeals is to effect that, the Commission having made an award in the case of a minor employee injured by industrial

accident without allowing for the minor's expectation of wage increase and later having reviewed the award and enlarged it on account of such expectation, cannot make the new rate retroactive for the compensation period or periods covered by previous award or awards.

A sixteen year old errand boy lost his life by an elevator accident; the Commission made allowance for minor's expectation of increase notwithstanding an opinion of Commissioner Lyon advising against such allowance: 19 S. D. R. 458, Feb. 25, 1919; the employer appealed from the award upon ground other than the allowance and the courts affirmed the award: Smith v. Bartle Mfg. Corp., 189 App. Div. 426, Nov. 21, 1919; – N. Y. -, Mar. 9, 1920.

A nineteen year old stock clerk for a hospital supplies company stuck a case hook in his right leg near the knee. His injuries resulted in complete synovitis of the keen joint, equivalent to loss of the leg from point of view of his occupation. The Commission awarded him disability compensation with allowance for expectation that his wages would increase. The employer took an appeal. The issue appeared to be whether expectation of increase of wages should be confined to the particular occupation of stock clerk in which he was engaged at the time of the injury or be broadly applied to general possibilities of increase of wages in any and all occupations on account of attainment by the minor of his majority and maturity. Also the employer, citing the record, charged the injured employee with a malingering spirit relative to re-engaging in work. The Appellate Division reversed the award and remitted the matter to the Commission with opinion as follows:

MARKOWITZ V. WATTERS LABORATORIES, 191 App. Div. 267, Mar. 11, 1920.

KILEY, J.: The only question raised on this appeal is whether the Commission had any basis, in the evidence, to award the claimant as large an amount as was awarded to him. On the 9th day of March, 1918, the date of the accident, the claimant was working for the appellant, employer, as stock clerk and was receiving $2 a day, $12 a week. By agreement between the claimant and his employer it was provided that he should receive two-thirds of that weekly wage, $7.69, subject to approval of the State Workmen's Compensation Commission. Upon examination by a physician it was found that as a result of the injury complete ankylosis of the ankle joint had taken place — and stating further "the defect is equivalent to the loss of the use of the leg from a vocational point of view.The examination further disclosed that this young man was not physically equipped for heavier work than he was doing and that $14 or $15 per week would be about the increased wages he would earn. The claimant being a minor the Commission exercised the power given it under section 14, subdivision 5, of the Compensation Law to find, as a matter of fact, he would be entitled to an increase of wages to $18 a week; based upon that weekly wage claimant's weekly award, $7.69, as provided by the agreement, was raised to $11.54 weekly award, lacking only a few cents of his full weekly wage when injured. The record discloses no evidence upon which such increase could be made. One of the Commissioners made such suggestion or estimate; but what took place on the exami. nation falls short of evidence with probative force. It appears that the claimant is not inclined to do any thing 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.)

The award should be reversed and the matter remitted to the Commission for further consideration. All concur, except H. T. KELLOGG, J., dissenting. Award reversed, and matter remitted to the Commission for further consideration.

The Commission took account of a boy of fourteen's expectation of increase in Gersonowitz v. American Pickle Co., 21 S. D. R. 304, 5 Bul. 26, Oct. 22, 1919.



This topic is treated under “Disabilities” above, page 8.

I think we are warranted in saying that compulsory insurance is the cornerstone of our Compensation Law. Section 50 provides that “an employer shall secure compensation to his employees in one of the following ways," naming four. The same section provides a penalty for failure so to do. Section 52 makes such a failure a misdemeanor, while section 11 deprives an employer failing so to secure compensation of his common law defenses when sued. In fact the compulsory feature of the law seems to be the only excuse for the establishment of the state fund as an insurance agency, the idea apparently being that insurance under compulsion ought to be made possible at bare cost. It is true that there is provision made for an employer's remaining uninsured ($ 50, subd. 3), but only after permission from this Commission and the giving of security before the loss arises.

In this elaborate scheme for safeguarding payments of compensation to injured workmen, it seemed to us that it was intended that the aggregate trust provided in section 27 should play some part. It seems that in some cases an employer should be compelled, after compensation loss has arisen, to segregate from his other assets sufficient money and permanently remove it from the risk of his business to carry the loss to maturity.

If this cannot be done in a case where the employer has utterly failed to secure compensation as the law provides, then section 27 is virtually eliminated from the law altogether. It is true that this employer seems to have large assets, but everything which it owns within the jurisdiction of New York State may be removed over night. Again, many apparently prosperous concerns get into financial difficulties — witness the experience of the traction companies in and around New York city in recent years.

Since the adoption of the new rule governing self-insurance it is doubtful whether the aggregate trust can be maintained as a solvent insurance unit. I, therefore, advise that on receipt of a surety company bond approved as to amount by our actuary and as to form by our counsel, the employer be allowed to continue payments bi-weekly. All the more so because the attor. neys for both parties expressed at the hearings a preference for that method of securing payment.

Sayer, Perkins and Mitchell, Commissioners, concur.

B. LUMP SUM PAYMENTS Reference to attacks of insurance carriers upon the constitutionality of lump sum awards as not being“ in the interest of justice has been made in Bulletin 95, page 186. The award in one of the lump sum cases cited there, Dodd v. 461 Eighth Avenue Co., has since been affirmed by the Court of Appeals with a memorandum which states the constitutional points at issue (227 N. Y. Rep. 597, Oct 21, 1919). Quotation of the words of the Court of Appeals in Sweeting v. American Knife Co. approving lump sum awards for disfigurement also appears in the same connection. Since that time the United States Supreme Court has approved the award in the Sweeting case with a remark in the concluding sentence of its

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