
    Before State Industrial Board, Respondent. Carmine Giovanniello, Respondent, v. Transit Development Company, Appellant.
    Third Department,
    March 4, 1925.
    Workmen’s compensation — award — earning capacity of claimant cannot be fixed arbitrarily.
    For the purpose of determining the amount of an award to be granted to the claimant, who is partially disabled, the earning capacity of the claimant cannot be fixed arbitrarily by the State Industrial Board, but must be based upon evidence.
    Appeal by the defendant, Transit Development Company, from an award of the State Industrial Board, made on the 28th day of March, 1924.
    
      George D. Yeomans [W. H. Sefton of counsel], for the appellant.
    
      Carl Sherman, Attorney-General [E. C. Aiken, Deputy-Attorney-General, of counsel], for the respondents.
   Cochrane, P. J.:

Claimant was injured September 9, 1916. He has been paid compensation to September 19, 1922. The award now under consideration covers the period from the latter date to May 4, 1923. It is found by the Board that during this period he had a wage earning power of $1.00 a week ” which has been deducted from his average weekly wage of ten dollars and ninety-five cents to constitute the basis of the award. The medical testimony is to the effect that claimant can perform work which does not require bending or heavy lifting. This testimony has been credited by the Board as appears by its finding that claimant had a wage earning capacity. But the extent of his earning capacity has been arbitrarily fixed at one dollar a week. There is no evidence as to how much he is able to earn. Claimant admits that prior to the award in question he worked more than two years, and in an award made September 18, 1922, immediately preceding the period covered by the award in question, it was found that he had an earning capacity of forty per cent, his average weekly wages being ten dollars and ninety-five cents, and there is no evidence of diminished earning capacity since that time. These facts well illustrate the inconsistency of the present award. The extent of the earning capacity of the claimant must be proved and not fixed arbitrarily.

The award should be reversed and the claim remitted, with costs against the State Industrial Board to abide the event.

All concur.

Award reversed and matter remitted,. with costs against the State Industrial Board to abide the event.  