Opinion
March 7, 1923.
Richmond Moot, for the appellant.
Charles D. Newton, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondents.
On May 31, 1921, while working for the General Electric Company, plaintiff slipped on a flight of stairs and suffered contusion of his back and shoulders and a slight periosteal tear in the right scapular region and the State Industrial Board has found he was totally disabled until March 4, 1922, and the employer, a self-insurer, has paid compensation up to August 27, 1921, and is appealing to review the legality of the award from that date to March 4, 1922.
The appeal should be sustained. During some of the time elapsing between August twenty-seventh and March sixth claimant was able to do light work. He made absolutely no attempt to obtain such work except from his employer which offered him a light job which he refused. The basis of liability for compensation for total disability where claimant has a wage-earning capacity is laid by making an attempt to secure such work in the same employment or otherwise as the injured employee may perform. ( Dzink v. United States Railroad Administration, 204 App. Div. 164.)
The award of total disability compensation is proper only where it appears that there is a "failure to find work" in the same employment or otherwise. The claimant here does not pretend that he could not have found light work that he could do. That this claimant "did refuse without excuse to use the powers which were his, is a conclusion not to be avoided upon the record now before us." ( Matter of Jordan v. Decorative Co., 230 N.Y. 522.)
The Industrial Board has found that light labor was denied him by his employer. This is not enough. The wage market is far wider than the General Electric Company. The disability of the claimant seems by the findings of the Industrial Board to be concededly partial. How much he might have earned is not made to appear. ( McNerney v. Heller, 200 App. Div. 285.)
The award should be reversed and the case remitted to the Industrial Board for further hearing, to fix his wage-earning capacity and make a new award, as authorized by the Workmen's Compensation Law of 1922, section 15, subdivisions 5 and 6. (See Workmen's Compensation Law of 1914, § 15, subds. 4, 5, as amd. by Laws of 1917, chap. 705. See, also, Laws of 1920, chap. 532, amdg. said § 15, subd. 5.) No costs.
H.T. KELLOGG, Acting P.J., KILEY, VAN KIRK and HINMAN, JJ., concur.
Award reversed and matter remitted to the State Industrial Board.