Opinion
May 5, 1943.
Appeal from State Industrial Board.
The appealing carrier is the State Insurance Fund. The only question presented is the method which should be used in computing the reduced earnings rate to which claimant was entitled for partial disability. The referee computed the reduced earnings rate by awarding to the claimant two thirds of the difference between his average weekly wages prior to the date of disablement and his actual earnings for the period covered by the award. The Industrial Board disregarded claimant's actual earnings and arbitrarily fixed his earning capacity at fifty per cent. Claimant had worked steadily for eighteen years and for the year prior to the date of disablement received as wages thirty dollars per week. He suffered an occupational disease and after a partial recovery was able to, and actually did, earn six dollars and forty-eight cents per week as a janitor. Section 39 Work. Comp. of the Workmen's Compensation Law provides that if it shall be determined that an employee, such as claimant, is able to earn wages at any other occupation, which shall be neither unhealthful nor injurious, and such wages do not equal his full wages prior to the date of disablement, the compensation payable shall be a percentage of full compensation proportionate to the reduction in his earning capacity. Apparently the Industrial Board in reversing the referee sought to apply this statute. It did so, not upon evidence as to what the claimant was able to earn in any other occupation which should be neither unhealthful nor injurious, but upon medical evidence that the physician believed that he could go back to work, or if his general condition was built up a little, it might be possible for him to return to work. There was insufficient basis for the application by the Industrial Board of this statute. Award reversed, with costs against the State Industrial Board, and the matter remitted for further proceedings. All concur.