Claim of Jagodzinski v. George Crean Provision Co.

Appellate Division of the Supreme Court of New York

Claim of Jagodzinski v. George Crean Provision Co.

22 A.D.2d 835, 253 N.Y.S.2d 757, 1964 N.Y. App. Div. LEXIS 2784

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 17, 1964

StatusPublished

This text of 22 A.D.2d 835 (Claim of Jagodzinski v. George Crean Provision Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Jagodzinski v. George Crean Provision Co., 22 A.D.2d 835, 253 N.Y.S.2d 757, 1964 N.Y. App. Div. LEXIS 2784 (N.Y. Ct. App. 1964).

Pincite

Opinion

Aulisi, J.

The employer and its insurance carrier appeal from an award for reduced earnings, the sole issue being as to rate. [836]*836The compensation claim was not controverted and carrier paid awards in full for claimant’s disability up to September 13, 1961. The controversy involved on this appeal concerns the amount of the award for the partial disability continuing after September 13, 1961. The Referee inserted in his original decision a 25% disability;. but crossed that figure out, substituting the flat award of $12 per week. In affirming, the board stated: “ considering the nature of the injuries and claimant’s physical impairment, the reduced earnings rate of $12 subsequent to September 13, 1961, reasonably represents claimant’s earning capacity.” Since claimant’s average weekly wage before the accident was $27, the $12 award indicates a partial disability of 66%% computed according to the formula set forth in subdivision 5 of section 15 of the Workmen’s Compensation Law. The evidence most favorable to claimant was of a 30% disability. Relying on Matter of Blum v. Jo-Mar Sportswear Co. (19 A D 2d 440), claimant urges that the board’s determination here must be sustained. In Blum as appears from the record on appeal, there was medical evidence of “ considerable ” disability and some indication, indeed, of total disability, which warranted the board’s disregarding the 25% set by the Referee; while here the record demonstrates not only the 30% disability which has been alluded to, but repeated references to “mild" or “very mild” partial disability. Although a minimum of a $20 rate is set, in no event shall compensation when combined with earning capacity exceed the amount of wages being received at the time of injury. (Workmen’s Compensation Law, § 15, subd. 6, par. [b].) Thus, in Matter of Maliszewski v. New York Tel. Co. (8 A D 2d 676) we reversed because the then minimum when combined with the earning capacity exceeded the preaccident wage rate. Decision reversed, with costs to appellants against .the Workmen’s Compensation Board, and matter remitted for further proceedings not inconsistent herewith. Gibson, P. J., Herlihy, Reynolds and Hamm, ,JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Aulisi, J.

The employer and its insurance carrier appeal from an award for reduced earnings, the sole issue being as to rate. [836]*836The compensation claim was not controverted and carrier paid awards in full for claimant’s disability up to September 13, 1961. The controversy involved on this appeal concerns the amount of the award for the partial disability continuing after September 13, 1961. The Referee inserted in his original decision a 25% disability;. but crossed that figure out, substituting the flat award of $12 per week. In affirming, the board stated: “ considering the nature of the injuries and claimant’s physical impairment, the reduced earnings rate of $12 subsequent to September 13, 1961, reasonably represents claimant’s earning capacity.” Since claimant’s average weekly wage before the accident was $27, the $12 award indicates a partial disability of 66%% computed according to the formula set forth in subdivision 5 of section 15 of the Workmen’s Compensation Law. The evidence most favorable to claimant was of a 30% disability. Relying on Matter of Blum v. Jo-Mar Sportswear Co. (19 A D 2d 440), claimant urges that the board’s determination here must be sustained. In Blum as appears from the record on appeal, there was medical evidence of “ considerable ” disability and some indication, indeed, of total disability, which warranted the board’s disregarding the 25% set by the Referee; while here the record demonstrates not only the 30% disability which has been alluded to, but repeated references to “mild" or “very mild” partial disability. Although a minimum of a $20 rate is set, in no event shall compensation when combined with earning capacity exceed the amount of wages being received at the time of injury. (Workmen’s Compensation Law, § 15, subd. 6, par. [b].) Thus, in Matter of Maliszewski v. New York Tel. Co. (8 A D 2d 676) we reversed because the then minimum when combined with the earning capacity exceeded the preaccident wage rate. Decision reversed, with costs to appellants against .the Workmen’s Compensation Board, and matter remitted for further proceedings not inconsistent herewith. Gibson, P. J., Herlihy, Reynolds and Hamm, ,JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

22 A.D.2d 835, 253 N.Y.S.2d 757, 1964 N.Y. App. Div. LEXIS 2784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-jagodzinski-v-george-crean-provision-co-nyappdiv-1964.