(dissenting). That part of the statute under which the award was made seems reasonably clear to me. “ Employees in employment of a covered employer for four or more consecutive weeks shall be eligible for disability benefits as provided in section two hundred four.” (Workmen’s Compensation Law, § 203.) I am unable to see any justification for tinkering with this clear language by the board, or anyone else except the Legislature.
Concededly claimant was not in “ employment ” with a “ covered employer ” for “four or more consecutive weeks ”, as those terms are commonly understood, or as indicated by the statute. If accuracy is of any moment in a controversy of this character claimant’s status was clearly that of an intermittent worker. The fact that he was willing to work but depended for assignments upon his labor union in no way changed the intermittent character of his employment. Had he been a nonunion painter with the same labor record, the mere fact that he was willing to work steadily for four consecutive weeks would not have sufficed to bring him within that part of the statute quoted. It is difficult to believe that the Legislature intended the statute to mean one thing for union painters and something else for nonunion painters; or to empower the board to promulgate a rule which has that effect.
It must be assumed that the Legislature had full knowledge that many workers are engaged in casual or intermittent employment. Casual labor is barred entirely from the benefits of the act (§ 201, subd. 6). Coverage for intermittent labor is limited to those who have four or more consecutive weeks of employment. Whether this scheme is good, bad or indifferent, is not for us to say. However, if it is bad then let the Legislature correct it.
I find nothing in sections 117, 141 and 241 of the Workmen’s Compensation Law which empowers the board to make regulations inconsistent with the language of the statute. Undoubtedly the board has power to make rules for the purpose of implementing the statute but they must be consistent therewith and not in conflict with express statutory language.
Bergan and Halpern, JJ., concur with Coon, J.; Foster, P. J., dissents in a memorandum, in which Imrie, J., concurs.
Award affirmed, with costs to the Workmen’s Compensation Board.