Claim of Brannigan v. Terzakis

285 A.D. 980, 138 N.Y.S.2d 199, 1955 N.Y. App. Div. LEXIS 6374

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1955
• Status: Published

Opinion

Appeal by the employer and insurance carrier from an award of compensation for partial disability on account of reduced earnings for the period from November 21, 1952, to March 19, 1953. Claimant sustained accidental injuries on August 16, 1951, in the course of his employment as a painter for the employer. Prior to the accident claimant had been a high school teacher. He testified that after school hours, during short vacations and during the summer vacation, he also worked as a painter. Following the accident claimant has never returned to work as a painter but he did return to work as a teacher on September 4, 1951. During the interval covered by the award he was earning $4,050 as school principal and $1,200 as county historian. In fixing both claimant’s average weekly wages at the time of the accident and his earning capacity after the accident, the board has excluded his earnings as teacher and historian and considered only his earnings as a painter. Appellants’ sole contention is that, in fixing his earning capacity after the accident, the board should include his entire earnings, in which event claimant would not be entitled to any award. While the board made no such specific finding, there is ample support in the record for the conclusion that the two employments are “ dual and dissimilar ” employments, and that he is entitled to be compensated for the earnings lost to him by virtue of his disability as a painter, without regard to his salary as a teacher. (Matter of Brandfon v. Beacon Theatre Corp., 300 1ST. Y. 111.) Moreover, it appears that the carrier objected to including “ any and all ” earnings for the purpose of fixing claimant’s average weekly earnings before the accident, and only his earnings as a painter were considered. The same criterion should apply in determining earnings after the accident. (Matter of Brandfon v. Beacon Theatre Corp., supra.) Award affirmed, with costs to the Workmen’s Compensation Board. Foster, P. J., Coon, Imrie and Zeller, JJ., concur; Bergan, J., dissents.