Claim of Bernsohn v. George Ferguson Co.

Appeal by claimant from that part of the decision and award of the Workmen’s Compensation Board which fixed the compensation rate. This case is before us a second time. On the first appeal, we held that the board had erred in failing to find that claimant was totally disabled and remitted the matter for further consideration (281 App. Div. 722). Upon such remission, the board modified its prior decision to the extent of finding that claimant had been totally disabled since 1932. However, it did not alter its earlier finding that claimant was entitled to a maximum rate of $9.61, the board ruling that the amendment to subdivision 6 of section 15 of the Workmen’s Compensation Law, effective April 19, 1930 (L. 1930, eh. 609), which increased the allowance in a case of total disability, was not retroactive, and that the rate of $9.61 was the maximum allowance under the pre-existing law. Since the law in force at the time of the injury is controlling (Matter of Neglia v. Zimmerman, 237 N. Y. 131; Matter of Draper v. Draper & Sons, 201 App. Div. 770), the board’s factual determination of the compensation rate based on that law must be sustained. We find that the board has, in effect, made a determination of the claimant’s average weekly earnings as the basis for a computation of the compensation rate, and that its determination is supported by substantial evidence. Decision and award’ unanimously affirmed, without-costs. Present — Foster, P. J., Coon, Halpern, Imrie and Zeller, JJ.