Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by the Workmen's Compensation Board as employer and the State Insurance Fund as carrier from a decision granting an award to claimant during the period subsequent to his retirement for an injury to his right knee sustained while a member of the Workmen's Compensation Board. Claimant was appointed to the board in March, 1943. Prior to that time he had been an electrician on construction jobs. Claimant injured his right knee on June 8, 1955, while in the course of his duties as a board member. In a memorandum of decision dated July 30, 1957, the board found accident, notice and causal relation and the case was continued for re-examination of claimant. Claimant's term of office expired on December 31, 1957 but he was continued until March 31, 1958 when a successor was appointed. Being then 69 years old, he was granted a superannuation retirement effective April 1, 1958. In a memorandum of decision filed June 4, 1958, the board granted an award for the period April 1, 1958 to May 5, 1958 at the reduced earning rate of $36 and restored the case to a Referee Calendar for development of the record on questions of classification and liability under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. After additional testimony had been taken the board determined, in the decision appealed from dated January 26, 1959, that claimant's refusal to undergo surgery was not unreasonable; that he had a permanent partial disability of the nonschedule type; and, that the case came under the provisions of subdivision 8 of section 15. Accordingly, an award was made from May 15, 1958 to January 26, 1959, at $36 reduced earnings, the carrier being directed to continue payments at that rate. On October 5, 1959, the board on its own motion reconsidered the matter and restored the case to the supervising Referee's Calendar for proof as to the claimant's attempt to secure employment and whether his inability to work was due to his disability. A hearing was held on November 10, 1959 and on the basis thereof the board in a decision dated December 21, 1959, also appealed from, reinstated the previous board decision of January 26, 1959, with the additional finding that "claimant's inability to earn as much as he did prior to his accident was due to his disability." Appellants urge that since claimant's employment was not terminated because of his disability but solely due to his failure to be reappointed by the Governor the board erred in making an award commencing the day his employment with the board terminated, citing Matter of Roberts v. General Elec. Co. ( 6 A.D.2d 43). It is well settled, however, and the Roberts case itself so affirms, that the fact claimant retires or is laid off from his job does not preclude an award where there is a subsequent loss of wage-earning capacity which is due to claimant's disability rather than to old age, general economic conditions or other factors unconnected with his disability. ( Matter of McCarthy v. General Motors Corp., 12 A.D.2d 866 [employee out of work because employer's plant closed due to economic conditions]; Matter of Fey v. Republic Aviation Corp., 6 A.D.2d 928, motion for leave to appeal denied 5 N.Y.2d 707 [employee retired]; Matter of Hermon v. Pugh, 272 App. Div. 985 [strike].) There is substantial evidence in the record upon which the board could determine that claimant's inability to find employment was primarily a result of the disability and not his age or general economic conditions. The fact that claimant is receiving a superannuation retirement allowance is not a bar to his also receiving compensation benefits. Section 30 Work. Comp. of the Workmen's Compensation Law provides that only death benefits awarded under the act are affected by revenue or benefits from certain other sources, not here relevant. As we are not concerned with death benefits in the case at bar, the instant award is not reduced or precluded by the receipt of a superannuation retirement allowance. Appellants urge that an award at the maximum rate was improper since there was no proof as to what claimant's earnings would be with the private companies to which he applied for employment in 1959, were it not for the 1955 injury, or what his wages were prior to his being appointed to the board in 1943. While normally the absence of such proof would constitute reversible error ( Matter of Singer v. New York State Workmen's Compensation Bd., 11 A.D.2d 886), the record reveals that the parties hereto at a hearing held on May 14, 1958 stipulated a $36 weekly compensation rate. In addition, the record does not reveal that this facet of the case was raised before the board, and appellants, accordingly, cannot now raise the question in this court (Workmen's Compensation Law, § 23; Matter of Braune v. Haas, 13 A.D.2d 875). Decision and award unanimously affirmed, without costs.