Opinion
January 18, 1950.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Appeal by employer and its insurance carrier from a decision and award of compensation which directed payments to an injured employee for reduced earnings, on account of partial disability, between April 7, 1947, and August 30, 1949. The actual period in issue on appeal involves various weeks between April 23, 1948, and August 27 of the same year. It is conceded that claimant sustained an accidental injury, arising out of and in the course of his employment, which resulted in partial disability. At the time of the accident claimant's average weekly wage was $27.50. During the period in question there were some weeks where claimant's wages sank below the level of his preaccident weekly wage, but his total earnings during such period averaged the sum of $33.49 per week. On account of this situation appellants urge that claimant suffered no reduced earnings within the meaning of the statute during the period in question and cite the case of Matter of Bullock v. Wickwire Spencer Steel Co. ( 270 App. Div. 68) to support their position. In that case, however, no relation was shown between claimant's reduced earnings and his disability. In the present case the board has found causal relation and there is some evidence to sustain this finding. True it is that such evidence is the testimony of the claimant himself but there is no requirement in the statute, or otherwise, that such testimony must be of a medical character. Nor do the facts of the Churchill case ( Matter of Churchill v. Finger Lakes Garages, 262 App. Div. 410) supply a precedent here. The ruling in that case must be strictly applied to its own peculiar facts. We think, therefore, the claim in this case is controlled by the general rule which has been followed in many cases ( Matter of Matise v. Munro Waterproofing Co., 293 N.Y. 496, and Matter of Neidrawer v. Lake Erie Engineering Corp., 271 App. Div. 940). Award unanimously affirmed, with costs to the Workmen's Compensation Board.