Claim of Agrelli v. Interborough Rapid Transit Co.

255 A.D. 731, 6 N.Y.S.2d 759, 1938 N.Y. App. Div. LEXIS 4939

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 1938
• Status: Published

Opinion

Claimant was injured on April 17, 1925. No question is raised as to the adequacy of the compensation paid him since that date except for the period from November 9, 1929, to October 31, 1932. At the time of the accident April 17, 1925, claimant was earning $29.48 per week as an electrical inspector. Between the above dates, November 9, 1929, to October 31, 1932, he earned as a watchman $33.51 per week, which was $4.03 more than he was earning at the time of the injury. Counsel for the claimant-appellant seeks a further allowance in the sum of $8 per week as reduced earnings during this period. In other words, counsel insists that under the pretext of reduced earnings claimant, who was making $29.48 a week at the time of his accident, should be allowed $41.51 during the above period; $33.51, his actual earnings, and $8 per week as reduced earnings. Claimant worked five and one-half days a week, nine hours per day, before the accident and he worked seven days a week after the accident. Subsequently after the rendering of this decision the Legislature amended section 15, subdivision 6, Workmen’s Compensation Law, by adding the following limiting words: “ but in no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.” [See Laws of 1937, chap. 86.] Award unanimously affirmed. Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ.