Claim of Nat Trust v. Webster Baking Co.

Reynolds, J. Appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board awarding claimant benefits for reduced earnings. On July 5, 1963 claimant, a bakery route salesman, sustained a lumbo sacral sprain while lifting a box of baked goods. Appellants do not dispute that disability resulted from this injury. They contend, however, that [808] claimant’s back condition, apart from the two weeks immediately following the accident, has bad no effect upon bis earnings, and instead would attribute any reduction to economic factors. A reduction in earnings due solely to economic conditions is not compensable (Matter of Haynos v. American Brass Co., 8 A D 2d 870). However, if the disability did, in fact, cause or contribute to reduce earnings an award must be made (Matter of Croce v. Ford Motor Co., 307 N. Y. 125). The resolution of this issue in a given case is factual and thus the board’s determination if based on substantial evidence is not reviewable (see Matter of Connor v. Bethlehem Steel Co., 11 A D 2d 578). Here claimant while conceding that a bakery route business increases and decreased periodically as a matter of course, testified that since the accident he had lost business which he could not even attempt to regain or replace because he was physically unable to handle more business and appellants in turn offered evidence to establish that the loss of business in claimant’s territory was due solely to increased competition. On the present record we cannot disturb the board’s resolution of these conflicting positions. Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Herlihy, Taylor and Aulisi, JJ., concur.