Opinion
March 11, 1959
Present — Foster, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal by an employer and its insurance carrier from a decision and award made by the Workmen's Compensation Board in favor of claimant for partial disability and reduced earnings. Claimant was employed as the manager of a laundry plant at a salary of $150 a week. Although he was employed as a manager his duties required him at times to drive a truck and to pick up loads of laundry at various places. On one of such occasions he suffered a back injury, on account of which, it could be found, he ultimately lost his job. Thereafter he secured work as a longshoreman, and earned on an average the sum of $100 per week. Following the accident he received a series of awards for partial disability between January 29, 1953 and August 15, 1954, all of which were paid. The sole question on appeal is whether there was substantial evidence to sustain the board's finding of a causally related partial disability for the period after August 15, 1954, which is the subject of the award herein on appeal. Ordinarily the work of a longshoreman would be envisioned as rather heavy work, but claimant testified that he was doing light work as a longshoreman, work that did not involve bending down. His credibility was of course for the board to pass upon. There is medical testimony to the effect that his back condition prevented him from constantly bending over to pick up objects, and to that extent he was partially disabled. The board found claimant to have only a 75% earning capacity, and awarded him $25 a week reduced earnings. We find nothing in the record that should impel us as a matter of law to reverse the award; the whole controversy seems to be wholly factual in nature, and therefore within the board's exclusive fact-finding power ( Matter of Gorton v. Max Brenders Farms, 7 A.D.2d 686). Award unanimously affirmed, with costs to the Workmen's Compensation Board.