Majority
p. 875In the Matter of the Claim of Henry L. Hall, Respondent, against Nell Brothers and Kern and Another, Appellants. State Industrial Board, Respondent.
This is an appeal by an employer and insurance carrier from an award of the State Industrial Board in favor of claimant. Two questions are presented. Appellants contend that claimant’s failure to submit to a fusion operation is unreasonable and that his wage was improperly determined. There is ample medical testimony to support the finding that claimant’s failure to submit to an operation is not unreasonable. The Board fixed the wage rate under subdivision 3 of section 14 of the Workmen’s Compensation Law. Claimant was a five-day worker, had not worked substantially the whole of the year prior to his accident. In determining his annual earning capacity the Board combined claim
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ant’s earnings for the year prior to his injury with an amount earned by another in a like employment during the time when claimant had no earnings. No error was committed in so doing. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Rhodes, McNamee, Crapser and Hefíernan, JJ.