Claim of Parrilla v. Leemar Knitting Mills Inc.

27 A.D.2d 965, 279 N.Y.S.2d 266, 1967 N.Y. App. Div. LEXIS 4334

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1967
• Status: Published

Opinion

Gabrielli, J.

Appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board. Based on reports of physicians and examinations conducted, various Referee’s awards were made following claimant’s injury, all of which were based on findings of partial or marked partial disability, determined as a 75% disability or a 25% earning capacity. The board’s finding that claimant had sustained a “ total loss of marketable earning capacity” is not sustained by the record. The medical evidence justified a finding that claimant was fit for some employment. Recommendations and findings that he should attempt to return to work were not followed. Claimant made a single attempt to regain his former job, and unless other employment is sought without success, the disability will, under these circumstances, be considered partial (Bello v. General Elec. Co., 204 App. Div. 613). It is undisputed that he has some earning capacity. We can find no substantial evidence in the record that claimant sustained a total disability (Matter of Mastropolo v. City of New York, 283 App. Div. 753), and no substantial evidence of the percentage of partial disability, if such there was. Decision reversed, with costs to appellants against the Workmen’s Compensation Board, and case remitted to the Workmen’s Compensation Board for further proceedings. Gibson, P. J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gabrielli, J.