Claim of Mazurkiewicz v. Maritime Milling Co.

18 A.D.2d 740, 235 N.Y.S.2d 426, 1962 N.Y. App. Div. LEXIS 6175

Opinion

The only issue on this appeal is the payment of $440.71 for partial disability subsequent to March 13, 1960. The balance of the award is not in dispute. The record discloses that during the period subsequent to March 13, 1960 the claimant was receiving unemployment insurance benefits due to a lack of work in the vicinity of Buffalo. There is no evidence in the record that associates his partial disability of dermatitis with loss of work, and there is accordingly no substantial evidence to sustain the finding of the board that “ he has suffered a loss of earnings as a result of his disability ”. A further reading of the memorandum of the board suggests that while he had a partial disability both before and after the appellant plant closed, he attempted to seek work elsewhere and not findihg any, the board decided he was entitled to compensation for loss of earnings. , Such is not the rule. (Matter of Fiorella v. Empire Worsted Mills, 7 A D 2d 657; Matter of Meyers v. Walsh Constr. Co., 12 A D 2d 371.) To be entitled to compensation for a claim of partial disability, there must be an association between the partial disability and the wage loss or diminution, as distinguished from loss of work due to economic conditions, retirement, voluntary withdrawal from the labor market or other factors not associated with the! disability. Decision and award granting compensation to the claimant subsequent to March 13, 1960 reversed, with costs to the appellant against the Compensation Board. Bergan, P. J., Coon, Herlihy, Reynolds and Taylór, JJ., concur.