Opinion
January 18, 1950.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Claimant suffered an injury to his right foot in a steel plant on October 24, 1942. There was a transverse linear fracture of the third metatarsal toe; a sliver fracture of the second metatarsal and a chip fracture of the lateral border of the scaphoid. There followed some total disability. There is medical proof, within the province of the board to accept as reliable, that there has been a resulting partial disability from metatarsal arthritis. It is not argued by the appellants that there is no remaining disability. What is argued is that for a considerable period before he left the employ of the employer claimant's earnings had been higher than they were at the time of his injury. He was performing lighter work as a crane operator, at higher wages, than in his work as a "chipper" in which he was injured. He left his employment in the steel plant on August 4, 1945, at about the time he opened his own restaurant for business in which he has been engaged during the period of this award. The award for partial disability is from August 1, 1945, to September 16, 1946. There is some proof by claimant that even the lighter work on the crane caused pain, and there is adequate medical opinion, if credited, to sustain a finding of partial disability resulting from the injury during the period covered by the award. The problem presented thus is a question of fact. Even if the last job for this employer was lighter work at more pay, claimant was not under compulsion to continue it if in fact it increased the pain and if in fact he had a partial disability in the foot. It is objected that the award begins August 1, 1945, whereas employment ceased August 4th. The record shows no application addressed to the board to correct this error and hence it is not reviewable here. The board retains continuing jurisdiction to correct an error of this sort and application for relief must first be addressed to it. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.