223 A.D. 550 | N.Y. App. Div. | 1928
The State Industrial Board has found that the claimant was injured in the regular course of her employment at her employer’s plant while cleaning knife blades in a vat of gasoline in that “ she suddenly inhaled and swallowed a large quantity of the gasoline fumes, and as a result, the membrane of her vocal cords and the membrane of her trachea, lungs and bronchial tubes became inflamed, and as a result, acute bronchitis and acute gastritis developed, and as a result claimant suffered from laryngitis and tracheitis, involving the vocal cords.” It is the further finding of the Board that during the period of this award the claimant was and still is permanently partially disabled. There is evidence to sustain these findings.
In determining the compensation rate, however, the Board has made this finding: “ Claimant’s compensation on reduced earnings is hereby made at § the difference between the former wage of $3. a day and her wage earning capacity estimated at $1.50 per day, the claimant having a wage earning capacity but unable to market it.” We find no proof to sustain this finding as to a wage earning capacity of one dollar and fifty cents a day.
Claimant lives in the village of Franklinville, N. Y. Apparently there were but two factories located in that village, one of which is conducted by her former employer and the other a canning factory. What other opportunities for employment are available to her in that or a neighboring locality do not fully appear. She has made no effort to obtain employment except at the plant of her former employer, which she tried for a few days and says she could not continue because of the gasoline fumes, and at one store in the village where they would not employ her on account of her throat. She says she did not feel it necessary to go to other places because she did not think she could get a position “ because they just employ a few girls there and have hired the same girls all the time — they don’t need any help.” She says further that the canning factory “ is too much acid.” Outside of this huskiness in her voice which is reduced to a whisper when she is compelled to use it to any extent and her susceptibility to irritating fumes or foreign substances, such as dust in the air, she seems to be in a perfectly normal physical condition. She is a married woman about thirty-five years of age, and during this entire period since her accident has kept house for herself and her husband doing the household work unaided. Her voice has shown no signs of improvement, and there is medical testimony that it probably will not improve. She cannot obtain employment depending upon the use of her voice. Her opportunities for factory work are necessarily limited by the locality in which she fives, and by the atmosphere in which
The award should be reversed and the claim remitted for the purpose of taking proof of her earning capacity in accordance with this opinion.
Van Kirk, P. J., Whitmyer, Hill and Hasbrotjck, JJ., concur.
Award reversed and claim remitted, with costs against the State Industrial Board to abide the event.