Claim of Swirsky v. Brooklyn Ambulance Service , 3 A.D.2d 785 ( 1957 )

Appeal by the Special Fund for Reopened Cases from a decision and award of the Workmen’s Compensation Board. Claimant sustained three separate back injuries, on October 11,1941, January 2, 1944 and February 16, 1950, respectively. Following the last accident the board has found that claimant has a permanent partial disability due to all three accidents, and in making an award for reduced earnings allocated 50% of the disability to the first accident, which is chargeable to appellant. At the time of the first accident claimant was earning $35 weekly; at the time of the second accident $60 weekly, and at the time of the third accident $71.06 weekly. In computing the reduced earnings the board has used only the last figure. Appellant’s only contention is that the board was wrong in adopting a rate of compensation based upon claimant’s earnings at the time of the last injury, and contends that the provisions of section 15 of the Workmen’s Compensation Law require that claimant’s wages at the time of the prior injuries should be the basis of computation of reduced earnings. There is no substantial distinction between this case and Matter of Braunstein v. General Marine Repair (307 N. Y. 296), and the principles enunciated are controlling here. Upon the authority of the Braunstein ease the decision and award are affirmed, with one bill of costs to be divided between the respondent-carrier filing a brief and the Workmen’s Compensation Board. Permission to appeal to the Court of Appeals is granted to appellant. Foster, P.J., Coon, Halpern and Gibson, JJ., concur.