The opinion
Desmond, J.
(dissenting). The measure of workmen’s compensation payments for temporary partial disability is “ two-thirds of the difference between the injured employee’s average weekly wages before the accident and his wage earning capacity after the accident ” (Workmen’s Compensation Law, § 15, subd. 5). Subdivision 5-a of section 15 says that “ wage earning capacity ” of such temporarily and partially disabled employees shall be determined by “ actual earnings ”, if any. *132 These two subdivisions, read together, mean, to my mind, that in measuring after-accident “ earning capacity ” the board must take the wage rate the worker actually earns, not some theoretical, potential, or suppositious higher or lower rate. Thus, if a worker made $90 per week before injury and $60 afterwards, he is to be awarded two thirds of the difference, or $20 per week. But if that same man, shown by actual figures to have an after-accident earning capacity of $60 per week, is idle for a period, because of a strike of someone supplying materials to his employer, the latter fact does not change the physical, undisputed fact of his actual earning capacity of $60 per week. If that were not so, his “ earning capacity ”, which in fact remained at $60 per week, would have to be determined, for that period, at zero, just because the plant had to close temporarily for reasons not connected with his ‘ ‘ earning capacity ’ ’. If general economic conditions, or fluctuation in demand, or change of market, reduces, permanently or semipermanently, days of employment, a worker’s “ earning capacity ” is in fact reduced. But if his plant’s shutdown is because of some mechanical failure therein or because of some strike in a supplier’s plant, the worker’s “ actual earning capacity ” remains unchanged by such temporary stoppages. I do not think any of the cited cases contradict that.
I favor affirmance.
Conway, Dye and Froessel, JJ., concur with Lewis, Ch. J.; Desmond, J., dissents in an opinion in which Fuld and Van Voorhis, JJ., concur.
Order reversed, etc.