Claim of Whittaker v. Central Square Central School District

87 A.D.3d 1249, 929 N.Y.2d 892

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2011
• Status: Published

Opinion

McCarthy, J.

Claimant challenges the calculation of his average weekly wage in connection with the establishment of a work-related injury to his right elbow and hand. Specifically, claimant asserts that the Workers’ Compensation Board erred in using a 200 multiplier (see Workers’ Compensation Law § 14 [3]) in determining his average weekly wage rather than a multiplier that more fairly and reasonably reflects his actual annual salary.

The record establishes that claimant worked as a school bus driver 10 months a year, totaling 220 days, and that his annual salary for the year preceding his injury was $33,991.73. The Board found, and claimant agrees, that Workers’ Compensation Law § 14 (1) and (2) are inapplicable because claimant did not work substantially the whole of the year nor is there a similar employee who worked substantially the whole of the year. The Board then calculated claimant’s average weekly wage pursuant to Workers’ Compensation Law § 14 (3) and (4), noting that it “must be calculated using a 200 multiple.” This was error. In determining a claimant’s average weekly wage, the 200 multiplier is a minimum to be applied in calculating a claimant’s average annual earnings (see Workers’ Compensation Law § 14 [3]; see also Matter of Palmer v Kaye Candies, 42 AD2d 661 [1973]). Here, a 200 multiplier bears no rational relationship to the number of days that claimant actually worked and results in an average weekly wage that does not fairly reflect his actual annual earnings.

Rose, J.E, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.