State of New York Supreme Court, Appellate Division Third Judicial Department
September 29, 2011
IN THE MATTER OF THE CLAIM OF WILLIAM WHITTAKER, APPELLANT,
CENTRAL SQUARE CENTRAL SCHOOL DISTRICT ET AL., RESPONDENTS. WORKERS' COMPENSATION BOARD, RESPONDENT.
Appeal from a decision of the Workers' Compensation Board, filed May 4, 2010, which ruled that claimant was totally industrially disabled and established his average weekly wage.
The opinion of the court was delivered by: McCarthy, J.
MEMORANDUM AND ORDER
Calendar Date: September 16, 2011
Before: Rose, J.P., Malone Jr., Kavanagh, Stein and McCarthy, JJ.
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 ) 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 ; see also Matter of Palmer v Kaye Candies, 42 AD2d 661 ). 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.P., 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.
Robert D. Mayberger Clerk of the Court
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