Opinion
September 11, 1997
Appeal from the Workers' Compensation Board.
Claimant was found to have suffered a permanent partial disability as a result of having been struck by a car while directing traffic at the scene of a fire in December 1990. At the time, claimant was acting in his capacity as a volunteer firefighter. Substantial evidence in the record supports the finding that claimant suffered a 75% loss of "earning capacity", as defined in Volunteer Firefighters' Benefit Law § 3 (8). We reject the employer's contention that claimant, age 74 and retired at the time of his injury, had no "earning capacity" to lose. Claimant's expert medical witnesses substantiated the finding that he was capable of gainful employment, both before and after the accident, but that the injuries sustained by him in the line of duty severely limited the type of work that he could perform ( see, Matter of Verrilli v. Town of Harrison, Hook Ladder Co. No. 1, 34 A.D.2d 1074, affd 28 N.Y.2d 882; see also, Matter of Humphrey v. Nimmonsburg Fire Co., 202 A.D.2d 882, 883).
Cardona, P.J., Crew III, Yesawich Jr., Peters and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.