Ins. Co. of North America v. S. E. Senior , 275 N.Y.S.2d 749 ( 1966 )

Staley, Jr., J.

This is an appeal from an order and judgment in an article 78 proceeding which granted the petition, and annulled and set aside two assessments made by the Chairman of the Workmen’s Compensation Board under sections 15 (subd. 8, par. [h]), 25-a and 151 of the Workmen’s Compensation Law, and directed the Chairman to make new assessments.

The respondent is an insurance carrier engaged in the business of issuing workmen’s compensation policies and, during the fiscal year ending March 31, 1964, paid the sum of $2,297,726.42 to workers pursuant to awards made by the Workmen’s Compensation Board.

On December 23, 1964, the appellant made an assessment pursuant to the provisions of sections 25-a and 151 of the Workmen’s Compensation Law and, on March 26,1965, he made an assessment pursuant to provisions of section 15 (subd. 8, par. [h]) of the Workmen’s Compensation Law; both assessments were based on the total compensation payments made by the respondent during the fiscal year ending March 31, 1964.

In connection with occupation diseases, section 44 of the Workmen’s Compensation Law provides as follows: “ The total compensation due shall be recoverable from the employer who last employed the employee in the emp1 oyment to the nature of which the disease was due and in which it was contracted. If, however, such disease, except silicosis or other dust disease and compressed air illness or its sequelae, was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section, may appeal to the-board for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employee was employed in the service of such employers ”.

Pursuant to the provisions of section 44, the respondent received recoupment payments during the fiscal year ending . March 31, 1964 in the sum of $197,831.63 from other carriers and self-insurers representing the apportioned amounts of the liability of prior employers who were jointly responsible for the worker’s disease.

The respondent contends that the assessments were erroneous since the Chairman refused to allow the respondent a deduction of the amount of the recoupment payments, from the amount of the total compensation payments for the fiscal year involved, as the basis for the computation of the assessments due.

Section 15 (subd. 8, par. [h]) provides that the computation of the assessment is based on “ total compensation paid by such carrier ’ ’ and section 151 provides ‘ ‘ total compensation or payments made by such carrier ” during the year involved.

The Chairman contends that no deduction of recoupment payments is permissible because there is no statutory directive providing for a deduction of such payments received from other carriers or self-insurers as a result of apportionment of liability. In addition, the Chairman has assessed the carrier making the recoupment payments on the basis of an inclusion of such payments in ‘1 total compensation or payments' made by such carrier. ’ ’

The term “ compensation” in this statute was not intended to include the same payments as the basis of liability for both the payee and payor in computing the assessments under these statutes.

The respondent here, as the last employer, is required to pay the entire award as a matter of convenience to the claimant. Ultimate responsibility rests on all the employers involved in the ratio of the apportionment provided by section 44. (Matter of Doherty v. Grow Constr. Co., 14 A D 2d 957.) There is but one compensation payment to the claimant employee made up of the share of the last employer plus the shares of prior employers. From the statute itself it seems almost self-evident that, if a claimant was paid $100 by carrier A and carrier B reimbursed A in the amount of $90, the statute was not intended to require the payment of an assessment on the total sum of $190.

The respondent is, therefore, entitled to a deduction of the recoupment payments received from prior employers pursuant to section 44 of the Workmen’s Compensation Law in the computation of the assessments provided by sections 15 (subd. 8, par [h]), 25-a, and 151 of the Workmen’s Compensation Law.

In the present case the appellant’s construction of the statutes does not conform with the letter and spirit of the statutes involved and violates the rule of statutory construction that where the interpretation of a statute would cause “ great inconvenience or produce inequality or injustice, another and more reasonable interpretation is to be sought.” (Matter of Meyer, 209 N. Y. 386, 389.)

The order and judgment should be affirmed.