(dissenting). The board in its decision of August 7, 1972 passed on the merits of the only issue in this case, i.e., whether the claimant had a causally related loss of earnings after October 10, 1966, and adhered to the affirmance of the Referee’s award and decision which granted compensation until October 10, 1966, and held that 'there was no compensable loss of time thereafter. The basis of the decision was changed, however, to wit: “ (1) that under Workmen’s Compensation Law, § 15, subd. 3, compensation shall be paid at the rate of 66%% of the difference between his prior average weekly wage and his wage-earning capacity thereafter; (2) that claimant has no wage-earning capacity while in prison since October 10, 1966; and (3) that claimant’s loss of wages while incarcerated is not due to his occupational head injury.” The appeal herein was taken solely from this decision. This decision and the basis thereof were correct and proper.
It is a fundamental principle of the Workmen’s Compensation Law that where a claimant voluntarily removes himself from the labor market, no matter what the reason, and his alleged loss of earnings is caused solely by ,a factor other than disability, he is not entitled to continuing payment of compensation (Matter of Gugino v. New York State Workmen’s Compensation Bd., 31 A D 2d 698, 699, mot. for 1v. to app. den. 23 N Y 2d 646; Matter of Trust v. Webster Baking Co., 25 A D 2d 807, 808; Matter of Fromm v. Rochester Tel. Corp., 22 A D 2d 728; Matter of Magnos v. American Brass Co., 8 A D 2d 870; Matter of Roberts v. General Elec. Go., 6 A D 2d 43, 45-46).
Additionally, it is of 'course true that the issue whether a loss of earnings was in any way contributed to by a causally related disability is one of fact to be resolved isolely by the board (Matter of Yamonaco v. Union Carbide Corp., 42 A D 2d 1014).
The claimant’is right to compensation for a temporary partial disability does not vest but rather it is dependent on continuing proof of causal relationship between loss of earnings and disability; the inability, as the result of a work-connected injury, to perform work suitable to a claimant’s qualifications (cf. 2 Larson, Workmen’s Compensation Law, § 57.00; Workmen’s Compensation Law, § 15, subds. 3, 5; § 37). There is no right to continue receiving workmen’s compensation without further proof of a continually related disability or loss of earning capacity which we do not have here and certainly no vesting *196until a classification of permanency, which was hot made here. At this juncture we reach the erroneous basis upon which the majority’s position depends. They rely entirely on Matter of Papkoff v. Feldman (26 A D 2d 140) which involved a patient in a mental hospital. In Papkoff, prior to his commitment to the mental hospital, his disability had been classified as permanent and the court upheld the board’s allowance of continuing compensation while so institutionalized. This principle of law refers only to cases where there .has been a prior classification of permanency, and has no value whatever as a precedent in the instant case. Here, it is obvious that the board could factually find that the claimant’s imprisonment and not his industrial accident has produced any reduced earnings. Thus, the board’s finding that any loss of earnings after October 10, 1966 was not causally related to or contributed to by his accidental injury must be ¡sustained.
The decision of the board should be affirmed, without costs.
Cooke and Sweeney, JJ., concur with Greenblott, J.; Herlihy, P. J., and Reynolds, J., each dissent and vote to affirm in .separate opinions.
Decision reversed, without costs, and matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent herewith.