Agostino v. Trocom Construction Corp.

77 A.D.2d 708, 430 N.Y.S.2d 394, 1980 N.Y. App. Div. LEXIS 12447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1980
• Status: Published

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed July 27, 1979, which held that subsequent to August 21, 1976, claimant had a 25% causally related disability entitling him to a weekly compensation rate of $47.15. It is undisputed that claimant was injured as a result of a compensable industrial accident on March 11, 1974 and further injured as a result of a noncompensable automobile accident on August 21, 1976. Following these accidents, the board ultimately ruled that, subsequent to August 21, 1976, claimant had a continuing 25% disability causally related solely to the compensable 1974 accident, and as a consequence, it awarded claimant compensation benefits at a weekly rate of $47.15. On this appeal, the sole question presented is whether the board erred in fixing the weekly compensation rate for claimant, and we hold that it did not. In its decision, the board clearly found that claimant had a continuing 25% disability causally related to his compensable accident, and it properly computed his weekly compensation rate to be two thirds of $70.73 or $47.15, which figure is two thirds of the difference between his average weekly wage before the accident of $282.93 and his wage earning capacity after the accident, i.e., 75% of $282.93 or $212.20 (Workers’ Compensation Law, § 15, subd 5; Matter of Pezella v Syra Inds., 36 AD2d 885; see, also, Matter of Picone v Tallman Constr. Corp., 75 AD2d 962). Decision affirmed, with costs to the Workers’ Compensation Board against the employer and its insurance carrier. Greenblott, J. P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.