Claim of Lally v. George F. Driscoll Co.

Hill, P. J. The amount of the claimant’s earning capacity is the only question here presented. I favor an affirmance of the award computed -under subdivision 2 of section 14 of the Workmen’s Compensation Law which is to be used in cases where the injured employee has not worked substantially the whole of the year in the employment in which he received his injury. His annual earnings shall be computed at the “ wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned.” Under this subdivision the fact-finding body, the Industrial Board, is not permitted to give consideration to the cause of an employee’s idleness. The Board may not consider thereunder the merits of any controversy between the employer and the laborer which resulted in a strike and the reasonableness of the attitude of either, [305] or whether necessity or indolence was the cause of a vacation. Possibly subdivision 3 of the same section would permit a consideration of these questions, for it is to be used if the method provided in subdivision 2 “ cannot reasonably and fairly be applied.” Thereunder the “ annual average earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment, or other employment as defined in this chapter, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee.” The quest thereunder is to ascertain the “ earning capacity.” A mental predilection toward periods of idleness or to strike or abandon an employment without cause would be reflected in the previous earnings of the employee, one of the elements which the Board is permitted to consider thereunder. Absence from work because of a strike or for a vacation may or may not be regarded as bearing upon earning capacity depending upon the necessity for the strike or the vacation. The Board determines the amount of earning capacity under its fact finding power. From the evidence here presented, the same result could have been reached under either of the two subdivisions mentioned. I do not find evidence that this employee deliberately elected to limit the time he would work and thus curtail the amount he would earn. I am, therefore, unable to reach the conclusion that “ he should not be heard to complain if his actual earnings are accepted as the measure of his earning capacity and the criterion as to what his services are worth.” I favor an affirmance. Crapser and Heffernan, JJ., concur; Rhodes, J., dissenxs with an opinion, in which Bliss, J., concurs.