Opinion
July 8, 1970
Appeal from decisions of the Workmen's Compensation Board, filed January 22, 1969 and July 11, 1969, which established an average weekly wage of $48.69 by applying the formula set forth in subdivision 3 of section 14 Work. Comp. of the Workmen's Compensation Law. While employed as a nurse's aide, claimant sustained injury to her back. The employer's statement of wage earnings filed with the board indicated claimant had worked for 16 weeks prior to the accident, averaging approximately three days per week, for which she was paid a total of $544.50. The subdivision [3] that the board applied provides that if subdivisions 1 and 2 are inapplicable, the average annual earnings of the employee "shall be such sum" as shall "reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident, provided, however, his average annual earnings shall consist of not less than two hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed". In applying this formula, the board multiplied claimant's daily wage of $12.66 by 200 and then divided by 52 to establish her average weekly wage. In an amended decision, it included a finding that claimant did not voluntarily limit her participation in the labor market. Appellants contend that this finding is not supported by substantial evidence and since claimant did limit her participation in the labor market, her average weekly wage should be computed on her actual earnings. The minimum proviso at the end of subdivision 3 of section 14 was not intended to apply to an employee who voluntarily and for a long period of time greatly limits his participation in industrial activity. "The floor at the end of the subdivision was intended to cover an industrial worker who had a general but irregular pattern of employment not consistently self-limited" ( Matter of Derion v. Gilford Mfg. Co., 282 App. Div. 788; see, also, Matter of Zoeller v. Fulton Storage Warehouse Co., 33 A.D.2d 1084; Matter of Winter v. Camp Scatico, 7 A.D.2d 812). The testimony adduced on the question of voluntary limitation is insufficient to support the board's finding that claimant did not voluntarily limit her participation in industrial activity, and the decision, therefore, must be reversed. Upon remittal, it may be possible to further develop the record on this issue. Decisions reversed and claim remitted to the Workmen's Compensation Board for further proceedings not inconsistent herewith, with costs to appellants against the Workmen's Compensation Board. Herlihy, P.J., Reynolds, Aulisi, Staley, Jr., and Greenblott, JJ., concur in memorandum by Aulisi, J.