Claim of Reilly v. Save-Mor

This is an appeal by the employer and its insurance carrier from a decision of the Workmen’s Compensation Board, filed April 12,1973,

On May 23, 1970, claimant, then age 18, injured his left knee while working for the employer. He continued working until *422February 1, 1971 at which, time surgery was ¡performed to correct a torn meniscus. Following the surgery, he was disabled until he returned to work on May 17, 1971, a period of 15 weeks. On September 19, 1972, a board physician determined that he had suffered a 12%% permanent loss of use of ths left leg. Pursuant to subdivision 3 of section 15 of the Workmen’s Compensation Law, claimant was entitled to 36 weeks of compensation at the rate of $70 per week based on his average weekly wage fixed upon an agreed wage expectancy basis of $105 per week. (Workmen’s Compensation Law, § 14, subd. 5.) His actual weekly earnings prior to the injury were established at $22.28. On April 12, 1973, the board determined ‘1 that permanency is deemed to exist from the inception of the injury and that the permanent partial disability rate of $70 applies during the entire period of schedule award.”

Appellants now contend that the conclusion of the board that the wage expectancy rate applies during the entire period of the schedule award is error in that he was temporarily totally disabled from February 1,1971 to May 17,1971, and the correct rate for the 15-week period of total disability should be governed by claimant’s average weekly wage prior to the accident which would result in a rate which would ¡not exceed $20 per week.

The evidence indicates that claimant .was permanently partially disabled from the time of the accident. The medical testimony established that claimant ¡sustained a permanent knee injury beginning- at the time of the accident on May 23, 1970. The allowance of the permanent partial disability rate of $70 per week commencing from the date of the accident and continuing through for the entire period of the schedule award was proper and should be affirmed. (Matter of Hilbert v. Preferred Plating Co., 36 A D 2d 77.)

The decision should be affirmed, with costs to the Workmen’s Compensation Board.

Herlihy, P. J., Greenblott, Cooke and Main, JJ., concur.

Decision affirmed, with costs to the Workmen’s Compensation Board.