Opinion
February 20, 1962
Appeal by the employer and carrier from a decision and award of the Workmen's Compensation Board. Claimant was injured on March 4, 1955 as the result of a fall from a tree located on his employer's estate. Compensation was awarded and paid until September 12, 1955 when he returned to work for the same employer with no reduction of earnings. On November 18, 1958 the Referee found that claimant had sustained a 50% permanent partial disability and closed the case pending a change in conditions or earnings. Continued full-time work at substantially increased wages ensued until March 1, 1960 when, at age 69 years, he accepted the benefits payable under the Social Security Act and reduced his employment to a part-time basis at a salary diminished to $100 per month, the maximum then permitted to be earned in a taxable year by a beneficiary of the social security system. At a hearing to consider the issue of loss of earnings subsequent to March 1, 1960, claimant was asked: "And because you were only allowed to earn $1,200 a year and retain your social security was why you were reduced to part-time work; isn't that correct?" and his reply was "Yes". Thus, by claimant's unequivocal admission his lower earnings were attributable to a factor other than causally connected disability and there is no evidence which approximates substantiality to the contrary. It follows that there was no factual basis for the award. ( Matter of Haynos v. American Brass Co., 8 A.D.2d 870; Matter of Roberts v. General Elec. Co., 6 A.D.2d 43.) Award reversed, with costs, and the matter remitted to the Workmen's Compensation Board. Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ., concur.