Romero v. Albany Medical Center Hospital

184 A.D.2d 971, 585 N.Y.S.2d 586, 1992 N.Y. App. Div. LEXIS 8574

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed April 16, 1991, which, inter alia, ruled that claimant’s wage expectancy should be calculated on a physician’s earnings.

We reject the employer’s contention that the Workers’ Compensation Board erred in considering claimant’s potential earnings as a physician instead of as a part-time nursing aide. Given that claimant was under 25 at the time of her injury, the Board, in arriving at her average weekly wages, could consider the fact that her wages would be expected to increase (see, Workers’ Compensation Law § 14 [5]). The general rule, that a finding of wage expectancy must be limited to the same or similar employment of injury (see, Matter of Donnelly v Buffalo Evening News, 5 AD2d 639), does not apply, however, in "certain atypical situations” (Matter of Lamiano v Sousa & Sons, 158 AD2d 818, 820; see, Matter of Cullen v Woolworth Co., 84 AD2d 600). Here, claimant’s position as a nursing aide was part time and secondary to her intention to become a physician. Claimant had enrolled in a course of college study intended to prepare her for medical school and selected a part-time job in the medical field to enhance her knowledge of health-related issues. She had received a Bachelor’s degree in biology and was taking graduate courses in genetics and molecular biology in preparation for medical school. We also find no error in the Board’s actual computation of claimant’s average weekly wage based on its determination of what her potential earning capacity was. The Board’s decision should therefore be affirmed.

Weiss, P. J., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the decision is affirmed, without costs.