Claim of Gurewicz v. 107 N. Fifth St. Corp.

48 A.D.2d 990, 369 N.Y.S.2d 567, 1975 N.Y. App. Div. LEXIS 10296

Opinion

Appeal from a decision of the Workmen’s Compensation Board, filed May 23, 1974. It is not disputed that claimant, a part-time bartender, sustained a compensable accident on May 6, 1972. The sole issue is how the computation of benefits should be handled. The board found that claimant sustained a schedule loss of 714% of the left arm. However, since claimant only worked one day a week as a bartender for which he earned $25, the board computed the award pursuant to subdivision 3 of section 14 of the Workmen’s Compensation Law resulting in an average weekly wage of $96.15 and a rate of $64. The board could properly utilize this method on the instant record (e.g. Matter of Birtolo v First Housing Co., 41 AD2d 872; Matter of Ednie v Five Star Beverage Co., 16 AD2d 845; Matter of Stallone v Liebmann Breweries, 12 AD2d 716, affd 10 NY2d 907). Appellants would in effect have this court overrule these prior decisions but it is properly a function of the Legislature to effect such a change and it has not done so in the 15 years since the decision in Stallone. Nor is the limitation contained in subdivision 6 of section 15 of the Workmen’s Compensation Law applicable since involved here is a schedule award. Accordingly, the decision of the board must be upheld. Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P.J., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.