Claim of Bostello v. Kennedy Construction Co.

263 A.D. 1031, 33 N.Y.S.2d 446, 1942 N.Y. App. Div. LEXIS 7958

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1942
• Status: Published

Opinion

Appeal from a decision of the State Industrial Board, dated December 13, 1939, affirming an award as made by the referee for reduced earnings at the rate of eight dollars per week. Appellant contends that the award at the eight-dollar minimum rate was insufficient and that it should have been at the rate of thirteen dollars and seventy-five cents based upon a fifty per cent reduced earning capacity. Claimant was injured on June 12, 1931; and was totally disabled to July 15, 1931. From July 15, 1931, until June 14, 1938, he received compensation at the rate of thirteen dollars and seventy-five cents per week. The present award, which he now appeals from, at eight dollars a week, covers the period from June 14, 1938, to July 11, 1939. He was a laborer but never resumed his work after the accident and never offered any testimony of earnings from which his earning capacity could be determined. His present complaint is dizziness and that he is unable to work on elevations. As far back as 1932 there was medical testimony that he was able to return to his usual work and that there was no cause for disability. In 1938 he was examined by a physician designated by the Industrial Board who reported that there was a partial disability due to loss of taste and smell which affected his pleasure and satisfaction and mode of life only, and that there was no reason why he should not be able to do his usual work. Decision unanimously affirmed, without costs. Present — Hill, P. J., Crapser, Bliss, Heffernan and Foster, JJ.