IN RE: the Claim of William ZIEGLER (1997)

Appeal from a decision of the Workers' Compensation Board, filed October 19, 1994, which ruled that claimant sustained a compensable injury and awarded benefits under the Volunteer Firefighters' Benefit Law.

Claimant was found to have suffered a permanent partial disability as a result of having been struck by a car while directing traffic at the scene of a fire in December 1990.   At the time, claimant was acting in his capacity as a volunteer firefighter.   Substantial evidence in the record supports the finding that claimant suffered a 75% loss of “earning capacity”, as defined in Volunteer Firefighters' Benefit Law § 3(8).   We reject the employer's contention that claimant, age 74 and retired at the time of his injury, had no “earning capacity” to lose.   Claimant's expert medical witnesses substantiated the finding that he was capable of gainful employment, both before and after the accident, but that the injuries sustained by him in the line of duty severely limited the type of work that he could perform (see, Matter of Verrilli v. Town of Harrison, Hook & Ladder Co. No. 1, Volunteer Firemen's Co., 34 A.D.2d 1074, affd. 28 N.Y.2d 882, 322 N.Y.S.2d 719, 271 N.E.2d 553;  see also, Matter of Humphrey v. Nimmonsburg Fire Co., 202 A.D.2d 882, 883, 610 N.Y.S.2d 878).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.