Opinion
January 25, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal from a decision and award of the Workmen's Compensation Board. Claimant sustained an accidental injury to the lumbosacral area of his back in the course of employment, but lost no wages because he was placed in lighter work by the employer. There is a finding of permanent partial disability. During two relatively short periods in 1958 the employer's plant was closed and claimant did not work. There is testimony in the record that during these periods he attempted to find work but could not do so because of his physical condition. Since claimant had no actual wages during these periods, the board has based his wage earning capacity on the formula provided by subdivision 5-a of section 15 Work. Comp. of the Workmen's Compensation Law, and has made an award of 50% partial disability. If there is an actual physical partial disability, but no loss of wage because the claimant has continued in employment and hence has no immediate right to compensation, the right accrues thereafter when full wages no longer are paid although the disability continues. This right is especially clear if the claimant tries to find other employment but is not able to do so (cf. Matter of Hermon v. Pugh, 272 App. Div. 985; Matter of Jones v. Halcomb Steel Co., 276 App. Div. 938). Award unanimously affirmed, with costs to the Workmen's Compensation Board.