Claim of Zicherman v. Zicherman

Appeal from an award for reduced earnings. The matter was before this court on a prior appeal (8 A D 2d 868). The accident happened on May 26, 1954 and the injuries resulted in restricting the work activities of the claimant. Upon remission, the board found that the average weekly wage of the claimant before the accident was $73.73 in the place of $102 per week in its prior award. The board further determined the amount of $35 per week paid claimant since September 9, 1954, reasonably represented his wage earning capacity. The appellants contest the finding of $35 per week and argue such determination conflicts with the prior finding of the board of an earning capacity after the accident of 70% of normal. We find the present decision justified. The board has found an average weekly wage before the accident within the framework of our prior decision. Upon remission there was testimony that the claimant’s earnings following his return to work were $35 per week and which the board has estimated as his actual earning capacity. This is a proper method of determining wage rates. (Matter of Croce v. Ford Motor Co., 307 N. Y. 125.) The board’s determination of the weekly compensation rate was supported by substantial evidence. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.