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Matter of Gurewicz v. 107 N. Fifth St. Corp.

Appellate Division of the Supreme Court of New York, Third Department
Jun 26, 1975
48 A.D.2d 990 (N.Y. App. Div. 1975)

Opinion

June 26, 1975


Appeal from a decision of the Workmen's Compensation Board, filed May 23, 1974. It is not disputed that claimant, a part-time bartender, sustained a compensable accident on May 6, 1972. The sole issue is how the computation of benefits should be handled. The board found that claimant sustained a schedule loss of 7 1/2% of the left arm. However, since claimant only worked one day a week as a bartender for which he earned $25, the board computed the award pursuant to subdivision 3 of section 14 Work. Comp. of the Workmen's Compensation Law resulting in an average weekly wage of $96.15 and a rate of $64. The board could properly utilize this method on the instant record (e.g. Matter of Birtolo v First Housing Co., 41 A.D.2d 872; Matter of Ednie v Five Star Beverage Co., 16 A.D.2d 845; Matter of Stallone v Liebmann Breweries, 12 A.D.2d 716, affd 10 N.Y.2d 907). Appellants would in effect have this court overrule these prior decisions but it is properly a function of the Legislature to effect such a change and it has not done so in the 15 years since the decision in Stallone. Nor is the limitation contained in subdivision 6 of section 15 Work. Comp. of the Workmen's Compensation Law applicable since involved here is a schedule award. Accordingly, the decision of the board must be upheld. Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.


Summaries of

Matter of Gurewicz v. 107 N. Fifth St. Corp.

Appellate Division of the Supreme Court of New York, Third Department
Jun 26, 1975
48 A.D.2d 990 (N.Y. App. Div. 1975)
Case details for

Matter of Gurewicz v. 107 N. Fifth St. Corp.

Case Details

Full title:In the Matter of the Claim of JOSEPH GUREWICZ, Respondent, v. 107 N. FIFTH…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 26, 1975

Citations

48 A.D.2d 990 (N.Y. App. Div. 1975)

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