You are here: / / EVEN THOUGH THE INJURED EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED...

EVEN THOUGH THE INJURED EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED AND WORKED ONLY 16 DAYS IN THE RELEVANT 52 WEEK PERIOD, HIS BENEFITS MUST STILL BE CALCULATED BY MULTIPLYING HIS DAILY WAGE BY 200 (THIRD DEPT).

The Third Department determined the mandated technique for computing lost wages applied even though the employee worked only sporadically as needed. The employee had worked only 16 days during the 52-week period but was entitled to benefits calculated at 200 times his daily 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 … . “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”… .

Here, 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 … . “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 Bain v New Caps, LLC, 2018 NY Slip Op 00369, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW EVEN THOUGH EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED AND WORKED ONLY 16 DAYS IN THE RELEVANT 52 WEEK PERIOD, HIS BENEFITS MUST STILL BE CALCULATED BY MULTIPLYING HIS DAILY WAGE BY 200 (THIRD DEPT))

You might also like
CLAIMANT WAS AN EMPLOYEE OF A RESIDENTIAL NEWSPAPER DELIVERY SERVICE AND WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).
Respondents Must Demonstrate Why Request Not Specific Enough For Extraction from Electronic Documents/Claim that Documents Are Exempt from Disclosure Is Not Enough to Defeat the Request—Remedy Is In Camera Review
CLAIMANT’S UNEMPLOYMENT INSURANCE BENEFITS PROPERLY REDUCED TO ZERO BECAUSE CLAIMANT’S PENSION EXCEEDED THE AMOUNT OF THE BENEFITS (THIRD DEPT).
THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER NEGLECTED THE CHILD BASED ON MOTHER’S DRUG USE WHEN SHE WAS PREGNANT; ALTHOUGH FATHER DID NOT REPORT MOTHER’S DRUG USE TO HER PROBATON OFFICER, FATHER MADE EFFORTS TO INTERVENE RE: MOTHER’S DRUG USE DURING THE PREGNANCY (THIRD DEPT).
ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS NOT PRESERVED FOR REVIEW.
THE FACT THAT THE ATTORNEY FOR THE CHILD (AFC) IN THIS CUSTODY MATTER HAD, AS A JUDGE, PRESIDED OVER A DIFFERENT CUSTODY MATTER INVOLVING MOTHER, BUT INVOLVING DIFFERENT CHIDREN AND A DIFFERENT FATHER, DID NOT REQUIRE AUTOMATIC DISQUALIFACTION OF THE AFC PURSUANT TO JUDICIARY LAW 17 (THIRD DEPT).
TERMINATION OF MOTHER’S SUPERVISED VISITATION IS A “DRASTIC REMEDY” WHICH MUST BE SUPPORTED BY “SUBSTANTIAL PROOF” CONTINUED VISITATION “WOULD BE HARMFUL TO THE CHILD;” THE PROOF HERE DID NOT MEET THOSE CRITERIA (THIRD DEPT). ​
Order Prohibiting Visitation Unless Recommended by Therapist Improper

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK IN THE... THE BOARD’S CONCLUSION, BASED UPON EXPERT TESTIMONY, THAT CLAIMANT’S...