Claim of Picone v. Tallman Construction Corp.

75 A.D.2d 962, 428 N.Y.S.2d 351, 1980 N.Y. App. Div. LEXIS 11607

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed May 3, 1979. On August 20, 1975, claimant sustained a subendocardial infarction. His average weekly wage was $350. The board affirmed an award of compensation at the rate of $125 per week from August 21, 1975 to February 25, 1976 for causally related total disability, and at the rate of $58.33 reduced earnings thereafter. The latter rate was based on a finding that claimant had a 25% causally related disability after February 25, 1976. This appeal ensued. We reject appellants’ contention that the referee found that only 25% of claimant’s total disability was attributable to his compensable infarction. We also reject claimant’s reliance on Matter of Pappas v Memorial Sloan Kettering Inst. (37 AD2d 887). The board, in our opinion, properly established a rate of $58.33 (Matter of Pezzella v Syra Inds., 36 AD2d 885; Workers’ Compensation Law, § 15, subd 5). Decision affirmed, with costs to the Workers’ Compensation Board against the employer and its insurance carrier. Sweeney, J. P., Staley, Jr., Main, Mikoll and Casey, JJ., concur.