As Amended May 18, 1955.
[141 N.Y.S.2d 313] Fink, McNamee & Pavia, New York City
(Samuel Miles Fink, Lloyd I. Isler, New York City, of counsel), for appellant.
Bernard Katzen, New York City (George J. Hayes, New York City, Victor Fiddler, Glen Oaks, William H. Stieglitz, New York City, of counsel), for respondents.
Jacob K. Javits, Atty. Gen., for respondent, Workmen's Compensation Board.
Before FOSTER, P. J., and BERGAN, HALPERN, IMRIE and ZELLER, JJ.
Antonio Iannone, a resident of the United States, sustained fatal injuries in an industrial accident. Death benefits were awarded to the decedent's widow, 54 years of age, and minor daughter both of whom are residents and nationals of Italy. Section 17 of the Workmen's Compensation Law provides, 'Compensation under this chapter to aliens not residents * * * of the United States of Canada, shall be the same in amount as provided for residents, * * * except that the board, may at its option, or upon the application of the insurance carrier, shall, commute as of the date of death all compensation to be paid to such aliens, by paying or causing to be paid to them one-half of the commuted amount of such compensation as determined by the board.' Pursuant to section 17, the awards were commuted to one-half of the present value of all future payments. The sole issue on this appeal is whether such commutation was proper.
The claimant-appellant contends that the awards should not have been commuted to one-half, regardless of section 17, because of a provision contained in the Treaty of Friendship, Commerce and Navigation existing between the United States of America and The Italian Republic, 63 U.S.Stat. 2255. Article XII, subdivision 1 of the Treaty, which became effective July 26, 1949, reads: 'The nationals of either High Contracting Party, regardless of alienage or place of residence, shall be accorded rights and privileges no less favorable than those accorded to the nationals of the other High Contracting Party, under laws and regulations within the territories of such other High Contracting Party that (a) * * * (b) grant to a wage earner or an individual receiving salary, commission or other remuneration, or to his relatives, heirs or dependents, as the case may be, a right of action, or a pecuniary compensation or other benefit or service, on account of occupational disease,
injury or death arising out of and in the course of employment or due to the nature of employment.' 63 Stat. 2272.
The Board does not contend that the quoted provision of the Treaty is inapplicable, but rests its decision upon the ground that 'such commutation does not constitute treatment of a (non-resident alien) claimant less [141 N.Y.S.2d 314] favorable but, indeed, quite possibly more favorable than that accorded nationals of the United States.' In our opinion, the payment to these non-resident alien dependents of one-half of the commuted amount of compensation does constitute less favorable treatment than accorded our own citizens.
The widow was awarded $15.75 per week from the date of decedent's death. The then present value of her award was calculated by the Workmen's Compensation Board to be $14,517.06. The weekly rate, the mortality and remarriage tables and other factors were used in determining this figure. If the widow had been a United States citizen, she would have been entitled to receive the weekly sum awarded during widowhood with two years' compensation in one sum upon remarriage, Workmen's Compensation Law, § 16, or, in the event of commutation, the full present value of the award, Workmen's Compensation Law, § 25. The weekly award to the decedent's minor daughter was $10.50 and the present value of her award was computed to be $2,555.02 as of the date of death. If she were a citizen of the United States, she would have been entitled to receive the weekly sum awarded until she reached eighteen years or, in the event of commutation, the full present value of the award. To award to these non-resident alien dependents only one-half of the rpesent value of such awards is obviously treatment different from and less favorable than that accorded nationals of the United States. The Board's contention that the commuted awards may 'quite possibly' constitute treatment 'more favorable than that accorded nationals of the United States' rests upon the supposition that perhaps the widow or child may not live as long as the actuary tables indicate or that the widow may be the one of approximately five ...