Opinion
November 16, 1961
This appeal was concerned with the determination of decedent's average wage rate which is governed by section 14 Work. Comp. of the Workmen's Compensation Law. The decedent was injured in 1946 while trimming trees in the course of his employer's business. In 1955 the decision of the Referee amended the prior award by establishing new rates of temporary total of $28 and temporary partial and permanent partial of $25 per week. The Referee apportioned the decedent's earnings from the employer from the year 1945 and added in the 1946 earnings, together with his proven earnings outside of such employment and determined his year's earnings to be $2,748 for the year immediately preceding May 9, 1946. Upon review by the board it was determined that the total disability wage was $15.34 per week and the partial rate $12 per week. The board determined that the decedent's yearly wage was $1,205, the amount earned from the employer for the year 1945 and made no finding as to earnings from outside employment. The decedent died in 1956; his widow, Mary Drew died in 1960, and this appeal is on behalf of the estate of the widow. Neither the Referee nor the board alluded to section 14 or its application in arriving at their respective wage rate. However, on this appeal, respondents in their brief concede that "The record, therefore, stands for the proposition that the claimant worked substantially the whole of the year and his actual earnings should have been used as the basis for fixing the average weekly wage." The claimant likewise argues this theory. Subdivision 1 of section 14 Work. Comp. of the Workmen's Compensation Law provides that "If the injured employee shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker, and two hundred sixty times the average daily wage or salary, for a five-day worker, which he shall have earned in such employment during the days when so employed". The real argument relates to whether the outside work performed by the decedent was of a similar type so as to be considered in arriving at a wage rate. The Referee and the board used the same theory of actual earnings for a one-year period although taking different dates for computation purposes. The Referee considered total earnings, including those besides the employer, while the board only considered the earnings from the employer. The section provides the average annual earnings should be determined based upon earnings "of the year immediately preceding his injury" which in this case is from May 9, 1945 to May 9, 1946. We further determine that there is substantial evidence in the record to sustain the finding that the outside employment was similar to the work being done by the decedent for his employer and consequently should be considered in arriving at a rate. ( Matter of Walla v. Streigel, 2 A.D.2d 914, motion for leave to appeal denied 2 N.Y.2d 708; Matter of Stallone v. Liebmann Breweries, 12 A.D.2d 716; Matter of Smith v. James, 12 A.D.2d 833.) Decision and award reversed and matter remitted for further determination not inconsistent with this memorandum, with costs to the claimant-appellant. Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.