Burley v. American Locomotive Co.

Appellate Division of the Supreme Court of New York

Burley v. American Locomotive Co.

16 A.D.2d 1002, 229 N.Y.S.2d 773, 1962 N.Y. App. Div. LEXIS 9081

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 21, 1962

StatusPublished

This text of 16 A.D.2d 1002 (Burley v. American Locomotive Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burley v. American Locomotive Co., 16 A.D.2d 1002, 229 N.Y.S.2d 773, 1962 N.Y. App. Div. LEXIS 9081 (N.Y. Ct. App. 1962).

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Opinion

Appeal by claimant from a decision of the Workmen’s Compensation Board which denied reduced earnings (except for one week in which claimant did not work), the board finding that for the 39 weeks’ period in question his average weekly wage was in excess of that prior to his disablement. The periods involved are those, or embraced by those, which were in issue upon a prior appeal (2 A D 2d 621), when we said that by reason of the great variations in claimant’s wages from week to week (fluctuating between a [1003]*1003low of $32.34 and a high of $192.69 in the year prior to his disablement and from less than $50 to more than $200 thereafter), “the only fair method of determining his ‘ actual earnings ’ [Workmen’s Compensation Law, § 15, subd. 5-a] is to select some reasonable period and average his earnings.” (p. 622.) This the board has now done. The “very unusual circumstances” here present were noted in another case subsequently decided. (See Matter of Liperman v. Giller, 6 A D 2d 732.) Decision and award unanimously affirmed, without costs. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.

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Appeal by claimant from a decision of the Workmen’s Compensation Board which denied reduced earnings (except for one week in which claimant did not work), the board finding that for the 39 weeks’ period in question his average weekly wage was in excess of that prior to his disablement. The periods involved are those, or embraced by those, which were in issue upon a prior appeal (2 A D 2d 621), when we said that by reason of the great variations in claimant’s wages from week to week (fluctuating between a [1003]*1003low of $32.34 and a high of $192.69 in the year prior to his disablement and from less than $50 to more than $200 thereafter), “the only fair method of determining his ‘ actual earnings ’ [Workmen’s Compensation Law, § 15, subd. 5-a] is to select some reasonable period and average his earnings.” (p. 622.) This the board has now done. The “very unusual circumstances” here present were noted in another case subsequently decided. (See Matter of Liperman v. Giller, 6 A D 2d 732.) Decision and award unanimously affirmed, without costs. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.

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Bluebook (online)

16 A.D.2d 1002, 229 N.Y.S.2d 773, 1962 N.Y. App. Div. LEXIS 9081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burley-v-american-locomotive-co-nyappdiv-1962.