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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. ADJ8820335
Regular
Apr 17, 2017

RAHSHON LOYD vs. DOLAN CONCRETE CONSTRUCTION, OLD REPUBLIC CONTRACTORS INSURANCE GROUP, GALLAGHER BASSETT SERVICES, INC.

This case concerns the calculation of applicant Rahshon Loyd's average weekly earnings (AWE) for temporary disability indemnity following a $100\%$ permanent and total industrial injury. The defendant argued the WCJ erred by calculating AWE based on a presumed 40-hour work week, instead of applicant's actual irregular earnings history. The Appeals Board granted reconsideration, finding that while applicant's earning capacity was relevant, his historical earnings as a union cement mason, even after attaining journeyman status, did not consistently reflect a 40-hour work week. Consequently, the Board amended the decision to calculate AWE as an average of his weekly wage over the three years prior to injury, resulting in a reduced temporary disability rate.

Workers' Compensation Appeals BoardAverage Weekly EarningsTemporary Disability IndemnityLabor Code Section 4453Earning CapacityUnion Cement MasonJourneymanPermanent and Total DisabilityVocational EvaluatorPetition for Reconsideration
References
4
Case No. MISSING
Regular Panel Decision

Fletcher v. Wegmans

Claimant sustained a work-related knee injury in November 2002. The Workers' Compensation Board calculated her average weekly wage at $398.49 by applying Workers' Compensation Law § 14 (3) and (4), as the claimant did not work a standard five or six-day week. The employer appealed, arguing improper statutory application. The appellate court affirmed the Board's decision, finding that the Board correctly utilized Workers' Compensation Law § 14 (3) to determine annual average earnings and subsequently Workers' Compensation Law § 14 (4) to establish the average weekly wage.

Work-related injuryAverage weekly wage calculationWorkers' Compensation Law § 14Statutory interpretationKnee injuryBoard decision affirmedWage calculation methodsAppellate reviewEmployer appealWorkers' Compensation benefits
References
3
Case No. MISSING
Regular Panel Decision

Claim of Barnard v. John Mezzalingua Associates, Inc.

The claimant sustained work-related injuries to both hands in 2004 and applied for workers’ compensation benefits. Initially, a Workers’ Compensation Law Judge set the average weekly wage at $447.10 using a 260-multiple. The employer appealed, arguing for a lower wage based on actual earnings. The Workers’ Compensation Board subsequently determined a miscalculation occurred and established the average weekly wage at $343.92, applying a 200-multiple under Workers’ Compensation Law § 14 (3) because the claimant did not work substantially the whole year. The Appellate Division affirmed the Board's decision, finding the 200-multiple accurately reflected the claimant's earning capacity, as she was a full-time employee who did not voluntarily limit her availability.

Workers' CompensationAverage Weekly WageWage CalculationSection 14MultiplierEarning CapacityAppellate ReviewBoard DecisionOccupational DiseaseNew York
References
5
Case No. MISSING
Regular Panel Decision
Feb 19, 1997

Till v. Chautauqua Opportunities, Inc.

The claimant, a private preschool teacher, suffered a compensable injury. The Workers’ Compensation Board calculated her average weekly wage based on Workers’ Compensation Law § 14 (1), asserting she worked “substantially the whole of the year” despite her 41-week annual employment. The employer contended this was irrational, arguing that predictable seasonal layoffs should be factored into the annual earnings calculation, preventing her from receiving benefits equivalent to a full-time, full-year employee. The court agreed, holding that the formula in Workers’ Compensation Law § 14 (1) was inapplicable when seasonal layoffs are a known incident of employment. Therefore, the average weekly wage should be calculated under subdivisions (3) and (4) of Workers’ Compensation Law § 14. The Board's decision was reversed, and the matter remitted for further proceedings consistent with the court's ruling.

Workers' CompensationAverage Weekly WageSeasonal EmploymentRemittiturStatutory InterpretationSection 14Appellate DivisionWage CalculationEmployment DurationBoard Decision Reversal
References
6
Case No. MISSING
Regular Panel Decision

Claim of Calise v. Hillside Carting, Inc.

Claimant, classified with a permanent partial disability after a 1994 injury, received reduced earnings benefits. In 2002, the State Insurance Fund (SIF) sought to terminate these benefits, arguing claimant's post-injury corporate profits should be included in his wage earning capacity. A Workers’ Compensation Law Judge initially reduced the award, but the Workers’ Compensation Board modified this, determining claimant's average weekly wage based on W-2s and tax returns, separating profits from earnings. On appeal, the court affirmed the Board's decision, emphasizing that business profits are not considered earnings for Workers' Compensation Law § 15 (5-a) purposes and upholding the Board's factual determination as supported by substantial evidence.

Workers' CompensationAverage Weekly WageReduced Earnings BenefitsPermanent Partial DisabilityCorporate ProfitsWage Earning CapacityTax ReturnsWorkers’ Compensation Law § 15(5-a)Appellate ReviewSubstantial Evidence
References
4
Case No. ADJ7895581
Regular
Feb 01, 2013

RAVEENA WATERS vs. HOMETOWN BUFFET, ACE AMERICAN INSURANCE COMPANY

The applicant sought reconsideration of a finding regarding her average weekly earnings (AWE) in a workers' compensation case. The WCJ initially calculated AWE based on one year of actual earnings, which applicant argued was inequitable due to a significant increase in her income from concurrent employment in the final months before her injury. The Board granted reconsideration, rescinded the previous order, and returned the case for a new decision. This was because averaging the entire year's earnings did not accurately reflect her earning capacity due to a recent, substantial increase in hours and income from her other job.

Workers' Compensation Appeals BoardRaveena WatersHometown BuffetAce American Insurance CompanyAverage Weekly Earnings (AWE)Cumulative InjuryRight WristElbowLeft WristConcurrent Employment
References
4
Case No. MISSING
Regular Panel Decision
Apr 03, 2000

Claim of Lesperance v. Gulf Oil Co.

The claimant, a former truck driver for Gulf Oil Company, developed bilateral torn rotator cuffs, diagnosed in September 1991, while working part-time for Susse Chalet. The Workers' Compensation Board ruled the condition an occupational disease, fixing the disablement date as September 3, 1991, and attributed it to employment with both Gulf and Susse Chalet, allowing Susse Chalet to pursue apportionment. The current appeal concerns the Board's decision from April 3, 2000, which established the claimant's average weekly wage based solely on employment with Susse Chalet. The claimant argued that due to the disease's degenerative nature and long employment with Gulf, wages from both employers should be considered for the average weekly wage. However, the Board's decision to base the average weekly wage solely on Susse Chalet employment was affirmed, citing Workers' Compensation Law provisions that define wage and average weekly wage based on employment at the time of injury and absence of provisions for successive employers.

Average Weekly Wage CalculationOccupational Disease ApportionmentDate of DisablementSuccessive Employment WagesRotator Cuff InjuryWorkers' Compensation Law InterpretationDegenerative DiseaseStatutory DefinitionsConcurrent Employment DistinctionBoard Decision Appeal
References
0
Case No. ADJ3576959 (OAK 0336251)
Regular
Oct 22, 2008

Miguel Vilela vs. Jerry Thompson and Sons Painting, Inc., Zurich North America Insurance Company

The Workers' Compensation Appeals Board granted reconsideration to address the defendant's contention that the applicant's Average Weekly Earnings (AWE) and resultant Temporary Disability Indemnity (TDI) rate were improperly determined. The Board found that the applicant's intermittent employment history meant his AWE should be calculated based on his earning capacity under Labor Code section 4453(c)(4), rather than a simple weekly rate. Consequently, the previous Findings and Award were rescinded, and the case was returned for further proceedings to redetermine the applicant's AWE accordingly.

Workers' Compensation Appeals BoardMiguel VilelaJerry Thompson and Sons PaintingZurich North America Insurance CompanyADJ3576959OAK 0336251Opinion and Order Granting ReconsiderationDecision After ReconsiderationFindings and Awardindustrial injury
References
0
Case No. MISSING
Regular Panel Decision

Claim of Salinas v. Diner

A claimant, a waitress, suffered a fractured hip and filed for workers' compensation benefits. Her case was established for a work-related injury, and a hearing was held to determine her average weekly wage, specifically regarding tip income. The Workers' Compensation Board calculated her average weekly wage as $111.30 based on reported salary and tips. The claimant appealed, contending that unreported tip income of $266 should have been included, which would raise her average weekly wage to $199.97. The court affirmed the Board's decision, stating that Workers' Compensation Law § 14 and 12 NYCRR 357.1 [c] mandate that tip valuation be based on amounts reported to the employer, absent a specific agreement.

Workers' CompensationAverage Weekly WageTip IncomeUnreported IncomeWage CalculationWaitressFractured HipBoard Decision AppealStatutory InterpretationNYCRR
References
0
Case No. MISSING
Regular Panel Decision
Feb 17, 1977

Orbinati v. Utica Mutual Insurance

A claimant, employed as a physical education teacher and track/football coach by the Utica City School District, sustained an injury in August 1970. His average weekly wage was calculated to include his coaching stipend. Following his injury, he returned to his teaching role with restrictions that prevented him from coaching. Despite subsequent salary increments resulting in a higher overall salary than his pre-injury average weekly wage, the claimant contended he was experiencing reduced earnings due to the loss of his coaching allowance. The Workers’ Compensation Board and the referee affirmed there were no reduced earnings, concluding that his teaching and coaching constituted a single, integrated employment. This decision was subsequently affirmed without costs.

Workers' CompensationReduced EarningsAverage Weekly Wage CalculationDual EmploymentSingle EmploymentCoaching StipendUtica City School DistrictWorkers' Compensation LawAppellate DecisionInjury in Course of Employment
References
1
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