Claim of Yankoski v. Carborundum Co.

32 A.D.2d 593, 299 N.Y.S.2d 472, 1969 N.Y. App. Div. LEXIS 4146

Opinion

Reynolds, J.

Appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board finding that claimant suffered permanent, partial disability and directing payments to continue at reduced earnings. It is not disputed that “ Claimant is permanently partially disabled and has a 75% earning capacity”; the sole issue raised here being whether there is substantial evidence to support the board’s determination that claimant sustained a causally related loss of earnings subsequent to his mandatory retirement on September 1, 1966. “An award for reduced earnings is sustainable where there is substantial proof of the effect of claimant’s disability upon her post-retirement earnings, or if the disability is even a contributing factor.” (Matter of Luizzi v. Tobin Packing Co., 29 A D 2d 1016, 1017 [emphasis added]; Matter of Fromm v. Rochester Tel. Corp., 22 A D 2d 728.) “ The fact claimant retires or is laid off from his job does not preclude an award where there is a subsequent loss of wage earning capacity which is due to claimant’s disability rather than to old age, general economic conditions or other factors unconnected with his disability.” (Matter of O’Connell v. New York State Workmen’s Compensation Bd., 14 A D 2d 945, 946, mot. for lv. to app. den. 11 N Y 2d 641.) On the instant record the board could properly find that claimant’s 1953 work-related back injury was a contributing factor in limiting his search to employment which required only light work and that he was unable to find employment within such limitation (Matter of Rigatti v. Lollo & Sons, 31 A D 2d 871) and, accordingly, its decision must be affirmed. Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Reynolds, J.