Claim of Weingarten v. Democrat & Chronicle

19 A.D.2d 566, 239 N.Y.S.2d 980, 1963 N.Y. App. Div. LEXIS 3816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1963
• Status: Published

Opinion

The employer and its carrier appeal from a decision and award of the Workmen’s Compensation Board for a continuing causally related partial disability dated November 9, 1961 and from a decision of the board dated April 13, 1962. Claimant was employed on the first three days of each week as a relief district circulation manager, the duties of which required him to pick up newspapers at the employer’s publishing plant and to deliver them to newsboys, stores and individual subscribers along a charted route about six or seven miles in length in the traverse of which approximately 33 stops were made; in effecting the deliveries his own motor vehicle was used. For the services he was paid a daily wage of $5; for the use of his automobile he received an additional weekly allowance of $11 which the board included in the computation of his preaccidental average weekly earnings. Whether this was correct is the only issue presented upon appeal. Inevitably claimant incurred expenses in the operation of the vehicle used in connection with the hiring; the extent of their recoupment may not be regarded properly as wages within the contemplation of the statute. (Workmen’s Compensation Law, § 2, subd. 9; Mailer of Le Voff v. Gompers é Blau, 278 App. Div. 878.) The residual financial advantage, if any, which he received from the employer by reason of the allowance the record does not disclose. Decisions and award reversed, without costs, and the matter remitted to the Workmen’s Compensation Board for further development of the record, the recomputation of claimant’s average weekly wage and an appropriate award. Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ., concur.