
    Before State Industrial Board, Respondent. A. Bello, Claimant, Respondent, v. General Electric Company, Appellant.
    Third Department,
    March 7, 1923.
    Workmen’s compensation — award for total disability cannot be continued where claimant who is able to do light work fails to show that he cannot find suitable work — failure to find work cannot be predicated on refusal of employer to furnish it.
    Compensation on the basis of total disability cannot be .continued after the claimant is able to do some work, unless the claimant shows that he has been unable to find any work in the same employment or otherwise that he is able to do.
    Failure to find work cannot be predicated on the fact that the employer refused to furnish work suitable to the claimant’s condition.
    Appeal by the defendant, General Electric Company, from awards of the State Industrial Board, made on the 3d day of February, 1922, and the 29th day of May, 1922, respectively.
    
      Richmond Moot, for the appellant.
    
      Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, of' counsel], for the respondents.
   Hasbrouck, J.:

On May 31, 1921, while working for the General Electric Company, plaintiff slipped on a flight of stairs and suffered contusion of his back and shoulders and a slight periosteal tear in the right scapular region and the State Industrial Board has found he was totally disabled until March 4, 1922, and the employer, a self-insurer, has paid compensation up to August 27, 1921, and is appealing to review the legality of the award from that date to March 4, 1922,

The appeal should be sustained. During some of the time elapsing between August twenty-seventh and March sixth claimant was able to do light work. He made absolutely no attempt to obtain such work except from his employer which offered him a light job which he refused. The basis of liability for compensation for total disability where claimant has a wage-earning capacity is laid by making an attempt to secure such work in the same employment or otherwise as the injured employee may perform. (Dzink v. United States Railroad Administration, 204 App. Div. 164.)

The award of total disability compensation is proper only where it appears that there is a “ failure to find work in the same employment or otherwise.. The claimant here does not pretend that he could not have found light work that he could do. That this claimant did refuse without excuse to use the powers which were his, is a conclusion not to be avoided upon the record now before us.” (Matter of Jordan v. Decorative Co., 230 N. Y. 522.)

The Industrial Board has found that light labor was denied him by his employer. This is not enough. The wage market is far wider than the General Electric Company. The disability of the claimant seems by the findings of the Industrial Board to be concededly partial. How much he might have earned is not made to appear. (McNerney v. Heller, 200 App. Div. 285.)

The award should be reversed and the case remitted to the Industrial Board for further hearing, to fix his wage-earning capacity and make a new award, as authorized by the Workmen’s Compensation Law of 1922, section 15, subdivisions 5 and 6. (See Workmen’s Compensation Law of 1914, § 15, subds. 4, 5, as amd. by Laws of 1917, chap. 705. See, also, Laws of 1920, chap. 532, amdg. said § 15, subd. 5.) No costs.

H. T. Kellogg, Acting P. J., Kiley, Van Kiek and Hinman, JJ., concur.

Award reversed and matter remitted to the State Industrial Board.  