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opinion to effect that 'the question whether the compensation should be paid in a single sum or in instalments is a matter of detail for the State to determine.' (Bulletin 97, page 17.)

C. PAYMENT TO CONSULAR OFFICERS

While consular officers may represent and protect their nationals in compensation matters in certain ways and to a certain extent, as, for instance, by filing death benefit claims on behalf of nonresident relatives of fatally injured employees, they may not collect monies awarded to such nationals without specific authority from them to act as their agents for receipt of such monies. Workmen's Compensation Law, $ 33, restricts payment of compensation and benefits “only to employees or their dependents.” The Commission commuted the claim of an Italian mother and her five minor children to a lump sum of $4196.84. The Royal Italian Consul claimed the right to have this commuted amount paid over to him by virture of his office. The Commission made an order directing that payment be not made to the consul but be left to such method as the insurance carrier might adopt in order to protect itself: Scannella v. Hydro Construction Co., 5 Bul. 94.

IV. RELEASE FROM LIABILITY

A tugboat boiler exploded, scalding the engineer to death. His widow, having applied for and received limited letters of adminis tration, executed a general release as administratrix to her husband's employer for a consideration of $3,622. She then claimed death benefits for herself and her eight children. The Commission made an award to her. Upon appeal, the employer argued that the claim had been settled and discharged by the release; or, if not, that the $3,622 ought to be deducted from the compensation. The Appellate Division reversed the award and dismissed the claim upon authority of the maritime decision in K'nickerbocker Ice Co. v. Stewart, - U. S. —, May 17, 1920: Conroy 1. Mott Haven Towing Line, Case No. 225282, June 23, 1919; App. Div. -, July 8, 1920.

Some earlier cases involving the question of release from liability have been presented in Bulletin 81, pages 335–339.

[48]

V. PAYMENT OF COMPENSATION— DEPOSIT OF

PRESENT VALUE WITH STATE FUND, LUMP
SUMS, ETC.

A. DEPOSIT OF PRESENT VALUE WITH STATE FUND History of the question of deposit with the state fund by private insurance carriers of the present value of awards made against them has been set forth at length in Bulletin 95, pages 162-183. Following the court decisions in the Sperduto case, the Commission abandoned its plan for an aggregate trust fund consisting of the present value of awards paid in by employers and returned to the employers the very large sum that it had collected from them. In lieu of such method of safeguarding compensation by selfinsurers it worked out a plan of security deposits. This plan appears in the annual report of the Commission for 1919 at page , under the title "Rules for Self-Insurers.” More than $5,000,000 of securities are now on deposit with the state fund.

In cases of award against uninsured employers the Commission's usual custom prior to the decision of the Court of Appeals in the Sperduto case was to require such uninsured employers to at once pay into the state fund the present value of the awards made against them. In reviewing a case of the kind after the Sperduto decision, Commissioner Lyon was of opinion that the “interest of justice” required immediate collection of the present value of awards against uninsured employers and that, if this could not be done, § 27 was virtually eliminated from the Workmen's Compensation Law altogether. Upon his recommendation, however, the Commission, in the case in hand, accepted the employer's offer of a security company's bond for bi-weekly payment of the compensation. His opinion was as follows: MCDERMOTT V. INGERSOLL & BRO., 20 S. D. R. 463, 5 Bul. 13, Aug. 2, 1919.

Lyon. Commissioner: Even under the reasoning of the Appellate Division in Adams v. New York & Ontario Railroad Company, an award may be commuted and called in to the aggregate trust of the state fund when there are exceptional circumstances, making it in the interest of justice. Since that decision the statute has been amended authorizing the use of the tables which were condemned by that decision, though the use of these tables has been severely criticised by the court.

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 a 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 attorneys 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 opinion to effect that the question whether the compensation should be paid in a single sum or in instalments is a matter of detail for the State to determine.' (Bulletin 97, page 17.)

C. PAYMENT TO CONSULAR OFFICERS While consular officers may represent and protect their nationals in compensation matters in certain ways and to a certain extent, as, for instance, by filing death benefit claims on behalf of nonresident relatives of fatally injured employees, they may not collect monies awarded to such nationals without specific authority from them to act as their agents for receipt of such monies. Workmen's Compensation Law, $ 33, restricts payment of compensation and benefits “only to employees or their dependents.” The Commission commuted the claim of an Italian mother and her five minor children to a lump sum of $4196.84. The Royal Italian Consul claimed the right to have this commuted amount paid over to him by virture of his office. The Commission made an order directing that payment be not made to the consul but be left to such method as the insurance carrier might adopt in order to protect itself: Scannella v. Hydro Construction Co., 5 Bul. 94.

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