Claim of Flax v. A. & A. Kroll Flooring Co. 9 A.D.2d 554

Appeal by one of two insurance carriers from a decision and award of the Workmen’s Compensation Board which imposed upon appellant liability for payment of one half of an award made on the basis of reduced earnings for the period July 19, 1952 to May 5, 1954. Disability was attributed to two accidents, the first on January 2, 1952 when claimant was employed by the respondent carrier’s assured at an average weekly wage of $105.52 and the second on July 19, 1952 when claimant was employed by the appellant carrier’s assured at an average weekly wage of $50. It has been found by the board and conceded by respondent carrier that no loss of earnings resulted from the second accident, unless after September 15, 1954, when claimant is said to have gone into business for himself. Consequently the award of disability benefits as against appellant for the period prior to that date was in error {Matter of Crawley V. Failla, 6 N Y 2d 57) and must be reversed, as the respondent carrier concedes. From the somewhat confused state of the record we cannot readily determine whether the award made by the Referee at the hearing of January 20, 1955, covering a period commencing September 15, 1954, was reviewed by the board. In any event, the questions arising thereon merit the board’s re-examination upon this remittal since there was not produced at the hearing any proof of continued disability *555related to the second accident nor any evidence of wage earning capacity (Workmen’s Compensation Law, § 15, subd. 5-a). Decision and award reversed and case remitted to the Workmen’s Compensation Board, with costs to appellant against respondent carrier. Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ., concur.