Claim of Blaine v. Unum Life Insurance

Appellate Division of the Supreme Court of New York

Claim of Blaine v. Unum Life Insurance

249 A.D.2d 633, 670 N.Y.S.2d 989, 1998 N.Y. App. Div. LEXIS 3849

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

DecidedApril 9, 1998

StatusPublished

This text of 249 A.D.2d 633 (Claim of Blaine v. Unum Life Insurance) 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

Claim of Blaine v. Unum Life Insurance, 249 A.D.2d 633, 670 N.Y.S.2d 989, 1998 N.Y. App. Div. LEXIS 3849 (N.Y. Ct. App. 1998).

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Opinions

—Carpinello, J.

Appeal from a decision of the Workers’ Compensation Board, filed March 7, 1996.

In March 1990, claimant suffered a nonwork-related injury to his right foot which disabled him from performing his duties as an MCI Telecommunications Corporation salesperson. His period of disability began on July 8, 1991. At that time, claimant and MCI were disputing the amount of employer-sponsored bonuses to which he claimed entitlement for the 1990 sales year, claimant having alleged that he was owed an additional $182,394.98 beyond his base pay, a sum which MCI sharply disputed. By settlement agreement dated August 9, 1991, MCI agreed to pay — and claimant agreed to accept — the sum of $88,000 in full settlement of this dispute.

After a hearing on claimant’s application for disability benefits, the Workers’ Compensation Law Judge (hereinafter WCLJ) calculated claimant’s average weekly wage by including the $88,000 settlement figure. MCI and its disability carrier, Unum Life Insurance Company, sought administrative review [634]*634of this decision, objecting to the inclusion of the settlement amount in the average weekly wage calculation. In responding to their objections, claimant argued that his average weekly wage should be based on inclusion of the disputed $182,394.98 figure. The Workers’ Compensation Board remitted the matter for development of the record as to when the bonus was due and owing, and whether “established and customary payroll practices” were utilized in calculating the bonus or if Workers’ Compensation Law § 357.2 (b) could be rationally interpreted to apply to this situation. It also required development of the record regarding claimant’s compensable disability period pursuant to Workers’ Compensation Law § 201 (9) (A).

Upon remittal, the WCLJ determined that the settlement was due and owing on June 14, 1991, which was within the applicable eight-week period prior to claimant’s disability, and should be included in calculating the amount of disability benefits. MCI and Unum again sought administrative review following which the Board agreed with the WCLJ, finding that the settlement was calculated in accordance with Workers’ Compensation Law § 357.2 (a) and was properly included in the average weekly wage calculation.

* It further found that the $88,000 was an annual bonus (see, Workers’ Compensation Law § 379.1) and that the record was not sufficiently developed in regard to claimant’s disability period after November 14, 1991. It therefore remitted the matter for development of that issue. Claimant appeals, contending that the calculation of his average weekly wage and the decision to remit the issue of his disability period were in error.

Contrary to claimant’s contention, the Board did not err in its calculation of claimant’s average weekly wage for purposes of determining the amount of his disability benefits. Wages not actually paid during the relevant eight-week period may nonetheless be “deemed paid” if they are so determined by an established and customary payroll practice of the employer (see, Workers’ Compensation Law § 357.2 [a]) or if they are determined by agreement after a dispute (see, Workers’ Compensation Law § 357.2 [b]). The Board found, and the record supports, that the bonus was determined in accordance with Workers’ Compensation Law § 357.2 (a) and therefore is properly includable in the total amount of compensation paid during the eight-week period preceding the date of disability [635]*635(see, Workers’ Compensation Law § 201 [13]). Since the Board included the $88,000 settlement" in the calculation of earnings for determining claimant’s disability benefits, a sum which the parties themselves agreed upon, the Board’s decision was certainly based upon more than “ ‘some credible evidence’ ” (Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756, 760) and should be affirmed in all respects.

We reject claimant’s additional challenges to the calculation of his average weekly wage, including his contention that the 1991 bonus should not be annualized (see, Workers’ Compensation Law § 379.1). Finally, because the issue concerning the period of claimant’s disability has been remitted and therefore has not been finally determined by the Board, we decline to review it.

White and Peters, JJ., concur.

Contrary to the dissent’s interpretation, we read that portion of the Board’s decision that refers to the disputed $182,394.98 not to be a finding that that amount is “earnings” but, rather, a mere reference to the details of the parties’ bonus dispute, which was resolved by the $88,000 settlement.

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—Carpinello, J.

Appeal from a decision of the Workers’ Compensation Board, filed March 7, 1996.

In March 1990, claimant suffered a nonwork-related injury to his right foot which disabled him from performing his duties as an MCI Telecommunications Corporation salesperson. His period of disability began on July 8, 1991. At that time, claimant and MCI were disputing the amount of employer-sponsored bonuses to which he claimed entitlement for the 1990 sales year, claimant having alleged that he was owed an additional $182,394.98 beyond his base pay, a sum which MCI sharply disputed. By settlement agreement dated August 9, 1991, MCI agreed to pay — and claimant agreed to accept — the sum of $88,000 in full settlement of this dispute.

After a hearing on claimant’s application for disability benefits, the Workers’ Compensation Law Judge (hereinafter WCLJ) calculated claimant’s average weekly wage by including the $88,000 settlement figure. MCI and its disability carrier, Unum Life Insurance Company, sought administrative review [634]*634of this decision, objecting to the inclusion of the settlement amount in the average weekly wage calculation. In responding to their objections, claimant argued that his average weekly wage should be based on inclusion of the disputed $182,394.98 figure. The Workers’ Compensation Board remitted the matter for development of the record as to when the bonus was due and owing, and whether “established and customary payroll practices” were utilized in calculating the bonus or if Workers’ Compensation Law § 357.2 (b) could be rationally interpreted to apply to this situation. It also required development of the record regarding claimant’s compensable disability period pursuant to Workers’ Compensation Law § 201 (9) (A).

Upon remittal, the WCLJ determined that the settlement was due and owing on June 14, 1991, which was within the applicable eight-week period prior to claimant’s disability, and should be included in calculating the amount of disability benefits. MCI and Unum again sought administrative review following which the Board agreed with the WCLJ, finding that the settlement was calculated in accordance with Workers’ Compensation Law § 357.2 (a) and was properly included in the average weekly wage calculation.

* It further found that the $88,000 was an annual bonus (see, Workers’ Compensation Law § 379.1) and that the record was not sufficiently developed in regard to claimant’s disability period after November 14, 1991. It therefore remitted the matter for development of that issue. Claimant appeals, contending that the calculation of his average weekly wage and the decision to remit the issue of his disability period were in error.

Contrary to claimant’s contention, the Board did not err in its calculation of claimant’s average weekly wage for purposes of determining the amount of his disability benefits. Wages not actually paid during the relevant eight-week period may nonetheless be “deemed paid” if they are so determined by an established and customary payroll practice of the employer (see, Workers’ Compensation Law § 357.2 [a]) or if they are determined by agreement after a dispute (see, Workers’ Compensation Law § 357.2 [b]). The Board found, and the record supports, that the bonus was determined in accordance with Workers’ Compensation Law § 357.2 (a) and therefore is properly includable in the total amount of compensation paid during the eight-week period preceding the date of disability [635]*635(see, Workers’ Compensation Law § 201 [13]). Since the Board included the $88,000 settlement" in the calculation of earnings for determining claimant’s disability benefits, a sum which the parties themselves agreed upon, the Board’s decision was certainly based upon more than “ ‘some credible evidence’ ” (Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756, 760) and should be affirmed in all respects.

We reject claimant’s additional challenges to the calculation of his average weekly wage, including his contention that the 1991 bonus should not be annualized (see, Workers’ Compensation Law § 379.1). Finally, because the issue concerning the period of claimant’s disability has been remitted and therefore has not been finally determined by the Board, we decline to review it.

White and Peters, JJ., concur.

Contrary to the dissent’s interpretation, we read that portion of the Board’s decision that refers to the disputed $182,394.98 not to be a finding that that amount is “earnings” but, rather, a mere reference to the details of the parties’ bonus dispute, which was resolved by the $88,000 settlement.

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249 A.D.2d 633, 670 N.Y.S.2d 989, 1998 N.Y. App. Div. LEXIS 3849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-blaine-v-unum-life-insurance-nyappdiv-1998.

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