Opinion
October 6, 1955.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
Claimant, a lawyer, was employed as claims manager by the employer, who was engaged in processing claims against employers who were insured by the State Insurance Fund. Claimant's back was injured on May 26, 1951, when he tried to restrain a filing cabinet from falling. Thereafter he was assigned to lighter work in the office and given an assistant who did outside investigating. Claimant, nevertheless, was continued at the same salary until about January 3, 1953. He then discontinued his employment under circumstances which are in dispute, and undertook to practice law, at reduced earnings. Appellants urge that the reduced earnings were not due to his injuries, but were due solely to his desire to discontinue the employment and practice his profession. Everyone concedes that claimant suffered a partial disability which disabled him from doing his regular work. There is evidence in the record that his continued service was undesirable to his employer and that he was unable, because of his injuries, to continue the work, even with the aid of an assistant. Upon engaging in the practice of law claimant was required, because of his partial disability, to take rest periods and to take time off for treatments. The record sustains the board's finding that he suffered reduced earnings because of the partial disability. This case is readily distinguishable from Matter of Moran v. Esso Standard Oil Co. ( 282 App. Div. 908) where the employee retired from employment for personal reasons and did not thereafter engage in any gainful employment. Claimant cross-appeals, contending that income received as a lawyer on his own time while in the employ of the employer, should be included in his original earnings. Such income had no relation to his original employment, resulted in no benefit to his employer, and was properly excluded in computing his earnings for compensation purposes. Award unanimously affirmed, with costs to the Workmen's Compensation Board against the original appellants and without costs against claimant as cross appellant.