Opinion
June 28, 1949.
Appeal from Workmen's Compensation Board.
The only question presented is as to claimant's rate of compensation. The board fixed his rate pursuant to subdivision 2 of section 14 of the statute (Workmen's Compensation Law). Claimant was an elderly man employed regularly over a long period for two days per week, Fridays and Saturdays. He was thus employed as extra help on those two busiest days and his wages was $6.50 per day. There were no others so employed and there is no evidence that claimant was employed otherwise or elsewhere. He was not of the same class as the other employees who were steadily employed five or six days a week and whose daily wage was $9 per day. Claimant's status comes within the provisions of subdivision 3 of said section of the statute. Decision and award reversed and the case is remitted to the Workmen's Compensation Board for making an award to claimant pursuant to the formula prescribed in subdivision 3 of section 14 Work. Comp. of the Workmen's Compensation Law, with costs against the Workmen's Compensation Board. Foster, P.J., Brewster, Deyo and Santry, JJ., concur; Heffernan, J., dissents in the following memorandum:
I dissent and vote to affirm the award. The board properly fixed the decedent's wage rate pursuant to the provisions of subdivision 2 of section 14 of the statute. It seems to me that the cases in this court and in the Court of Appeals upon which appellants rely are distinguishable.