Opinion
May 7, 1941.
Appeal from an award, error being asserted in fixing the wage rate. Claimant had not worked the whole of the year preceding the accident. His earnings prior to the accident were determined under subdivision 2 of section 14 Work. Comp. of the Workmen's Compensation Law to be thirty-one dollars and twenty-eight cents a week. This rate was based on the earnings of an employee engaged in a different type of trucking for a public utility corporation at a basic rate of eighty-one cents or eighty-six cents an hour, who earned $1,917.25 in the year prior to September 20, 1938 (the date of the accident). Claimant worked only for the employer during the previous year. He was employed 187 days and received $479.85 at the basic rate of fifty cents an hour. He did some work for a percentage of the amount received by the employer. Claimant's foreman, who worked the entire year, received only twenty-eight dollars a week. The rate fixed is not in compliance with section 14 Work. Comp. of the Workmen's Compensation Law. Award reversed on the law, with costs against the State Industrial Board, and matter remitted. Hill, P.J., Crapser, Bliss, Schenck and Foster, JJ., concur.