
    In the Matter of the Claim of Sam Surdi, Appellant, v Premium Coal and Oil Co., Inc., et al., Respondents. Workers’ Compensation Board, Respondents.
    Argued December 16, 1980;
    decided January 8, 1981
    
      APPEARANCES OF COUNSEL
    
      Burton J. Jacowitz for appellant.
    
      Joseph F. Manes for Premium Coal and Oil Co., Inc., and another, respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the penalty fixed by the referee reinstated for reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney at the Appellate Division (71 AD2d, at p 965), to which we add only that as in Kurcsics v Merchants Mut. Ins. Co. (49 NY2d 451, 459) so here the issue is one of legislative intent rather than administrative expertise.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.  