Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit
A “year-round” lifeguard employed by the Staten Island Developmental Disabilities Services Office was involved in an automobile accident in the course of his employment and applied for Workers’ Compensation Law benefits.
In determining the individual’s workers’ compensation benefits, the Workers’ Compensation Board’s administrative law judge included the employee's earnings “from concurrent seasonal employment as a lifeguard for the City of New York.” Staten Island appealed but the Workers’ Compensation Board ultimately sustained the administrative law judge’s determination.
The Appellate Division affirmed the Board’s ruling, noting that “The record demonstrates that the claimant was employed on weekends by Staten Island year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978.”
As the lifeguard had worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury, the Appellate Division concluded that “substantial evidence supports the Board's finding that claimant was concurrently employed.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03490.htm