Appellate Division of the Supreme Court of New York, 1972

Claim of Kirschenbaum v. Reliable Plastics Corp.

Claim of Kirschenbaum v. Reliable Plastics Corp.
Appellate Division of the Supreme Court of New York · Decided April 27, 1972
39 A.D.2d 621; 331 N.Y.S.2d 116; 1972 N.Y. App. Div. LEXIS 4773
Claim of Kirschenbaum v. Reliable Plastics Corp.

Opinion of the Court

Appeal from a decision of the Workmen’s Compensation Board, filed April 15, 1971. The board affirmed the Referee’s finding of no compensable lost time, determining that appellant’s income from corporate respondent was salary for services performed. This amount exceeds a sum represented by the established average weekly wage. There is substantial evidence to support this determination and to reject appellant’s contention that a portion of this income represented profits and not earnings (Workmen’s Compensation Law, § 15, subd. 5-a). Matter of Roberge v. United Bd. & Carton Corp. (21 A D 2d 713) is clearly distinguishable on its facts and does not require a contrary result. The issue presented being essentially one of fact, we are bound by the board’s determination (Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65). Decision affirmed, without costs. Staley, Jr., J. P., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.

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