Opinion
October 31, 1967
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board which determined that claimant had not withdrawn from the labor market and had a continuing disability, one-half of which was causally related to her accident and one-half to a noncompensable pre-existing back pathology. Claimant was engaged as a bookkeeper, and it is undisputed that she sustained an injury to her back on March 17, 1958 arising out of and in the course of her employment. Claimant received benefits from October 7, 1958 through October 27, 1958 and, for the period from October 27, 1958 to February 3, 1960, claimant lost eight weeks of employment, and an award was made for such period, and the case was closed on February 4, 1960. On March 25, 1965 the case was reopened on the basis of medical reports which indicated that the claimant had recurrent signs and symptoms referable to her back and left leg. The Referee held that claimant had a continuing causally related disability attributable equally to the accident of March 17, 1958 and her pre-existing back pathology, but made no monetary award because he found that claimant had withdrawn from the labor market based upon the fact that she had had two successful pregnancies since the date of her accident. The board reversed the Referee on the issue of withdrawal from the labor market. The appellants contend that there is no substantial medical evidence to sustain the finding of continuing causally related disability. The appellants apparently accept the finding of the board that claimant did not withdraw from the labor market, and refer to it only as it might have some relevancy on the issue of whether or not the medical evidence was sufficient to justify the award. Dr. Graham, an orthopedic surgeon, testified that he had examined the claimant in 1957 at which time she was disabled by reason of back pain unrelated to any trauma. He again examined her on June 16, 1958, and found that "She had a marked disability at that time." Dr. Graham further testified that he saw claimant periodically thereafter, and that his last examination was December 10, 1965; that during that period "She [had] recurring episodes of disability which would vary in degree" and that "her disability was causally related in part to the accident which aggravated the irritation in her lower back." Dr. Graham also reported on December 10, 1965 that claimant had "continuing recurring moderate partial disability." Dr. Kestler, the carrier's medical witness, testified that it was not reasonable to assume that all of claimant's symptoms were due to the accident, but that the accident was definitely an aggravating factor. Dr. Kestler also reported on September 21, 1965 that claimant had "a moderate partial disability." The testimony of Dr. Graham, in support of continued causally related disability, was substantial and ample to support the board's determination. The Referee found that claimant's weekly wage was $85 and made an award of $20 per week, the minimum prescribed by statute. Claimant had not worked for at least six years prior to the award. Section 15 (subd. 6, par. [b]) of the Workmen's Compensation Law provides for a minimum of $20 per week as compensation for permanent or temporary partial disability. It further provides that "In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred." The appellants contend that the Referee erroneously computed the amount of the award, particularly in view of the fact that he did not determine claimant's earning capacity. In Matter of Lawson v. Perrini ( 281 App. Div. 780) the court said: "While the board made no specific finding that the claimant's earning capacity was nil after the accident, we think this fact was implicit under the circumstances disclosed and hence the minimum award was proper. Subdivision 5-a of section 15 provides that the board may fix a ceiling as to earning capacity, where a claimant has no actual earnings, not in excess of 75% of his former full time earnings, but places no floor on the board's power to fix such capacity." In Matter of Blum v. Jo-Mar Sportswear Co. ( 19 A.D.2d 440, 442) the court said: "Subdivision 5-a of section 15 is permissive and not mandatory in permitting the board to fix the wage-earning capacity of a claimant and, therefore, does not prohibit the board from awarding the minimum as prescribed (§ 15, subd. 6, par. [b])". The award made to claimant here for her partial disability causally related, in part, to the accident is supported by substantial evidence and should be sustained. Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.