Claim of Brandfon v. Beacon Theatre Corp. , 85 N.Y.S.2d 128 ( 1948 )

An appeal by the employer and its insurance carrier from a decision and an award made to the claimant by the Workmen’s Compensation Board pursuant to the provisions of the Workmen’s Compensation Law. On March 27, 1944, the claimant while working as an electrician for the Beacon Theatre sustained accidental injuries to his back. Said injuries were occasioned by pushing a derrick truck which was used to change the lights on the marquee sign of the theatre. The claimant had been working as an electrician for the Beacon Theatre approximately five months prior to the accident and worked three days per week at the rate of $11 per day. At the same time that he was working as an electrician for the Beacon Theatre, he was working as a projectionist for the Stanley Mark Strand Theatre and averaged $80 per week. The claimant did not work as an electrician during substantially the whole of the year preceding the accident. The board based his wages, for the purpose of compensation, on the average weekly wage of a similar employee who had worked substantially the whole of the preceding year in a similar employment, pursuant to section 14 of the Workmen’s Compensation Law. In computing the claimant’s reduced earning rate the board considered only the claimant’s earnings as an electrician in which position he was injured, and not his earnings as a projectionist, which positions were dissimilar. (Matter of Birch v. Budd, 256 App. Div. 53; Matter of Whitney v. Gersitz, 264 App. Div. 968.) After the claimant had received an award for total and partial disability he recovered sufficiently to work as an electrician from Hovember 22, 1944 to March 20, 1946, at which time no award was made to him for partial disability as there was no loss in earnings. On March 20, 1946, the claimant became unable to work because of his back condition as a result of the accidental injury received on March 27, 1944, and was again awarded compensation for partial disability at the rate of $13.85 a week. During the entire period for which the claimant received compensation on account of partial disability he did not earn any wages as an electrician. The evidence sustains the findings of the board. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Hill, P. J., Heffernan, Foster, Russell and Deyo, JJ.