Calendar Date: December 14, 2017
McCambridge Singer & Mahoney, Ltd., New York City (Thomas
Park of counsel), for appellants.
T. Schneiderman, Attorney General, New York City (Marjorie S.
Leff of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
May 4, 2016, which established claimant's average weekly
while working as a production assistant, suffered a
work-related injury to his neck and back when the vehicle he
was in was hit from behind. The employer and its workers'
compensation carrier submitted a wage earnings statement
reflecting that claimant earned $2, 950 during the 52-week
period preceding the accident, as well as $2, 121.81 from
other employers. Based upon claimant's total earnings,
the employer asserted that claimant's average weekly wage
should be calculated using a 52-week divisor, resulting in an
average weekly wage of $97.53 . The Workers'
Compensation Board, finding that claimant had worked for the
employer for 16 days in the preceding 52-week period and
noting the absence of proof that claimant was not fully
available for employment, used the 200 multiplier set forth
in Workers' Compensation Law § 14 (3) and set
claimant's average weekly wage at $709.15. The employer
and the carrier appeal.
affirm. Workers' Compensation Law § 14 provides the
method for calculating an employee's average weekly wage.
Where, as here, Workers' Compensation Law § 14 (3)
applies, an employee's annual average earnings must be
computed based on "such sum as... shall reasonably
represent the annual earning capacity of the injured
[claimant] in the employment in which he [or she] was working
at the time of [his or her] accident [and] consist of not
less than two hundred times the average daily wage or salary
which he [or she] shall have earned in such employment during
the days when so employed." That total is then divided
by 52 weeks to reach the average weekly wage (see
Workers' Compensation Law § 14 ). "However,
the 200 multiple method is properly used to compute the
average weekly wage of a part-time or intermittent [claimant]
only where there has been a finding that the [claimant] was
fully available for the employment at issue, and should not
be applied if a claimant has voluntarily limited his or her
availability for work" (Matter of Servidio v North
Shore Univ. Hosp., 299 A.D.2d 685, 687  [internal
quotation marks, brackets and citations omitted]; see
Matter of Hahn v Brylin Hosp., 95 A.D.3d 1407, 1408
; Matter of Kellish v Kellish Tire Sales,
Inc., 12 A.D.3d 804, 805 ).
the record establishes that claimant worked for the employer
sporadically and on an as-needed basis in the 52-week period
before the accident. Although the employer submitted checks
that related to additional earnings by claimant during the
52-week period, no evidence was presented to demonstrate that
claimant voluntarily limited his availability for work with
the employer. Absent such evidence, the Board's use of
the 200 multiplier in determining claimant's average
weekly wage is supported by substantial evidence and will not
be disturbed (see Matter of Hahn v Brylin Hosp., 95
A.D.3d at 1408; Matter of Barnard v John Mezzalingua
Assoc., Inc., 36 A.D.3d 1055, 1055-1056 ;
Matter of Reasoner v New York State Dept. of Motor
Vehs., 110 A.D.2d 962, 963 ; cf. Matter of
Kellish v Kellish Tire Sales, Inc., 12 A.D.3d at 805;
Matter of Pease v Anchor Motor Frgt., 158 A.D.2d
820, 821 , lv dismissed 76 N.Y.2d 772');">76 N.Y.2d 772 ).
"While the result [herein] appears to be contrary to
[Workers' Compensation Law § 15 (6) (a), ] which
provides that compensation when combined with decreased
earnings or earning capacity shall not exceed the wages the
employee was receiving at the time of the accident, it is the
result reached by using the formula set forth in
[Workers' Compensation Law § 14 (3)] which has been
considered a legislative mandate" (Matter of
Stallone v Liebmann Breweries, 12 A.D.2d 716, 717
, affd 10 N.Y.2d 907');">10 N.Y.2d 907 ; see Matter of
Batal v Mayersohn, 11 A.D.2d 857, 857 ; Matter
of Terry v City of Glens Falls, Election Bd., 2 A.D.2d
625, 625 , lv denied 1 N.Y.2d 644');">1 N.Y.2d 644 ).
Clark, Aarons and Pritzker, JJ., concur.
that the decision is affirmed, without costs.
 At the hearing, the employer and the
carrier asserted that, as concurrent employment had not been
raised or established, claimant's average weekly wage
could be calculated at $56.73 based upon ...