
    In the Matter of the Claim of Richard Garner, Appellant, v. Shulte Co. et al., Respondents. Workmen’s Compensation Board, Respondent.
    Third Department,
    May 6, 1965.
    
      
      Haft <& Tischler (Abraham Markhoff of counsel), for appellant.
    
      Louis J. Lefkowitz, Attorney-General (Daniel Polansky of counsel), for Workmen’s Compensation Board, respondent.
    
      George J. Hayes and Joseph M. Soviero for State Insurance Fund and another, respondents.
   Gibson, P. J.

Appeal is taken from a decision of the Workmen’s Compensation Board which held that compensation could not be paid to claimant employee, who is now confined to a State prison under a sentence of life imprisonment; and neither, the board further held, could compensation, in the form of a posthumous schedule award, ¡be paid to claimant’s dependents, pursuant to subdivision 4 of section 15 of the Workmen’s Compensation Law, despite the provision of section 511 of the Penal Law, that: A person sentenced to imprisonment for life is thereafter deemed civilly dead ”, The provision has been held applicable to a life sentence imposed, as in claimant’s case, upon conviction in a foreign State. (See Matter of Pallas v. Misericordia Hosp., 264 App. Div. 1, 2, affd. 291 N. Y. 692; Jones v. Jones, 249 App. Div. 470, affd. 274 N. Y. 574.)

Claimant sustained injuries to his fingers for which he received payments of compensation until the time of the arrest which preceded his conviction and sentence. Subsequent to such sentence, a board physician concluded that claimant had sustained a schedule loss which would ordinarily entitle him to a schedule award for a balance of approximately $1,218 over the amounts previously paid. The 'board held that prior to an adjudication by it, claimant “ acquired no vested interest in an award for partial loss of use of fingers ”, citing Pallas (supra) and that “ the fiction of civil death is not to be given the same affect [sic] as actual death for purposes of Workmen’s Compensation Law and that the claimant’s compensation may not be paid to him during the period of imprisonment and it may not be disposed of as a posthumous schedule award on the facts of this record.”

We agree that the Pallas case forecloses any argument that claimant is entitled to compensation; but we find no basis for the board’s holding, nor for respondents’ argument that the centuries-old concept of civil death, which, of course, pre-existed the enactment of the Workmen’s Compensation Law and has survived its multitudinous amendments, is not so within its purview as to give rise to a posthumous claim. That the humanitarian purposes of the act extend to the protection of dependents is too clear to require discussion. There seems to us no basis in reason or in authority for accounting a dependent’s deprivations and necessities any less urgent or compelling when they are the results of a wage earner’s life sentence and consequent civil death, rather than of physical death. Initially, at least, ‘ civil death was given the same effect as actual death at common law and in equity only in so far as was required for the protection of wife or child” (Matter of Lindewall, 287 N. Y. 347, 355; emphasis supplied); and the amendments of the present section 511 of the Penal Law from time to time enacted evince primary concern for the rights and status of the innocent spouse. Turning again to the compensation act, we note that a (schedule) award made to a claimant under subdivision three shall in case of death arising from causes other than the injury be payable to and for the benefit of” certain designated dependents; and that “ award for disability may be made after the death of the injured employee.” (Workmen’s Compensation Law, § 15, subd. 4.)

The board’s memorandum in support of its decision is irrelevant, as is respondents’ brief, insofar as each is concerned largely with the proposition that no right to a schedule award became vested in claimant. Indeed, claimant does not assert a vested right entitling him to an award, but, on the contrary, contends that his dependents are entitled, pursuant to subdivisions 3 and 4 of section 15, to ‘ ‘ An award for disability * * * made after the death of the injured employee.” (Workmen’s Compensation Law, § 15, subd. 4; Matter of Wakefield v. Schlaier’s Sons Iron Works, 18 A D 2d 1121; Matter of Ehrhardt v. Eloge Co., 247 App. Div. 919, mot. for lv. to app. den. 272 N. Y. 676.) Respondents rely heavily on Matter of Pallas v. Misericordia Hosp. (264 App. Div. 1, affd. 291 N. Y. 692, supra), not merely as negating any theory of vesting in this case but as largely decisive of tij.e true determinative issues before us; but Pallas seems to us strong, if not, indeed, conclusive authority for the proposition that the civil death provision of section 511 of the Penal Law applies with full force to the Workmen’s Compensation Law; as such was the basis for the holding that for purposes of the compensation act a claimant under life sentence is dead and thus barred from benefits, exactly as though he were physically dead. That his dependents should occupy a position no different from that of the dependents of any claimant actually deceased seems the inescapable conclusion.

The claim has continued to be prosecuted in claimant’s name, without objection, but upon remittal a proper substitution should be effected. (See Matter of Pallas v. Misericordia Hosp., 264 App. Div. 1, 3, affd. 291 N. Y. 692, supra.)

The decision should be reversed and the matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent herewith, with costs to such claimant as shall be substituted for the present appellant.

Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.

Decision reversed and matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent herewith, with costs to such claimant as shall be substituted for the present appellant.  