—Appeal from a decision of the Workers’ Compensation Board, filed December 14, 1977. Claimant sustained a work-related injury, which was classified a permanent partial disability, and received compensation at the rate of $56.77 per week. He thereafter applied for a lump-sum settlement and, on December 22, 1976, the board approved a nonschedule adjustment in the sum of $13,000. However, payment was not made until January 31, 1977. Claimant then sought a penalty for failure to pay the award within 10 days and the referee fixed the penalty due him at 20% of the $13,000 nonschedule adjustment (see Workers’ Compensation Law, § 25, subd 3, par [c]). Following an objection by the employer and its carrier, the board modified the penalty to 20% of $227.08, representing claimant’s reduced earnings for the four-week period from January 1, 1977 to January 31, 1977, and this appeal ensued. In our view, there should be an affirmance. The approval by the board of an application for a nonschedule adjustment permitting the payment of a lump sum must be founded on conclusions that *965the claimant’s future earning capacity and continuance of disability cannot be ascertained with reasonable certainty, and that such action is fair and in his best interest (Workers’ Compensation Law, § 15, subd 5-b). In this case, the board has further determined, for the purpose of a penalty, that compliance with its approval does not fully constitute "payments of compensation according to the terms of the award” (Workers’ Compensation Law, § 25, subd 3, par [c]). Although we are not unmindful of certain judicial expressions tending to a contrary result (see Matter of Hart v Perkins, 258 NY 66; Matter of Hart v Perkins, 258 NY 61; Matter of Badarie v Charles B. Gols, Inc., 25 AD2d 79, mot for lv to app den 17 NY2d 423; Matter of Dodson v Healy Co., 275 App Div 130, mot for lv to app den 300 NY 760), none of those opinions directly addressed the quoted language, whereas here it is the board which has interpreted the applicable statutory provision. Had the settlement not been approved, it is well to remember that the "award” would have remained one of reduced earnings at the weekly rate of $56.77. We conclude, therefore, that the board construed the statute in a reasonable manner and in accordance with legislative intent (see Matter of Howard v Wyman, 28 NY2d 434). Decision affirmed, without costs. Greenblott, Kane and Main, JJ., concur.