Claim of Lux v. Chevrolet Buffalo Division, General Motors Corp. , 25 A.D.2d 593 ( 1966 )

’Memorandum by the Court. Contrary to appellant’s contention, there was substantial evidence that claimant’s injury was the cause of his transfer to lighter work, at a lower wage rate. Although that rate later increased, the rate for the work that he formerly performed rose correspondingly; and under the familiar authorities (see Matter of Croce v. Ford Motor Co., 307 N. Y. 125; Matter of Czop v. Bethlehem Steel Co., 17 A D 2d 669; Matter of Connor v. Bethlehem Steel Co., 11 A D 2d 578) the award was proper. As in Croce, which involved, inter alia, periods when the plant was closed down due to a strike, and in Czop, in which there was a general plant layoff, “ claimant’s wage earning capacity after disability should be determined on the basis of wages actually received by him during the period of partial disability, without regard for amounts the board thought claimant would have received had not respondent closed its plant on certain days during the period in question.” (Matter of Croce v. Ford Motor Co., supra, p. 130; emphasis as in original.) Decision affirmed, with costs to the Workmen’s Compensation Board.

Gibson, P. J., Taylor and Hamm, JJ., concur; Herlihy, J., concurs in the pesult;