Unless an administrative agency explains why it is deviating from its past decisions in making its ruling, courts take a dim view of departures from its precedent
Zaremski v New Visions, 2016 NY Slip Op 01220, Appellate Division, Third Department
In Zaremski, the Appellate Division reminded the Workers’ Compensation Board that a decision of the Board would be deemed arbitrary "if it departs from prior Board precedent and fails to explain the reasons for its departure".
In January 2012, James Zaremski suffered an injury to his lower back during the course of his employment as a general maintenance repairperson for the employer and did not return to that employment. At the time of his injury, claimant was also solely operating a self-owned appliance repair business and in June 2012 he resumed operating that business on a part-time basis but with physical restrictions.
Zaremski’s claim for workers' compensation benefits was established December 2012 and, following a hearing on the issue of reduced earning benefits, a Workers' Compensation Law Judge [WCLJ] found that he was entitled to tentative reduced earnings of $300 per week based upon the difference between his average weekly wage from his employment as a general maintenance repairperson and his weekly earnings subsequent to his return to work at his self-employment business.
Upon review, the Workers' Compensation Board modified the WCLJ’s decision and ruled that Zaremski had no compensable claim for reduced earnings after January 22, 2013.
The court said that the Board has previously determined that although wages from a noncovered concurrent employment cannot be included in the calculation of a claimant's average weekly wage pursuant to Workers' Compensation Law §14(6), such wages must be taken into account when computing a claimant's reduced earnings under Workers' Compensation Law §15(5-a).
Thus in Zaremski’s case the Board apparently ignored its precedent when it held that that Zaremski's self-employment did not qualify as concurrent employment to increase his average weekly wage, the earnings from his self-employment could not be considered in determining his “reduced earnings.”
The Appellate Division held that because the Board failed to explain its departure from this precedent, the decision must be reversed and the matter remitted for further proceedings before the Board.
The decision is posted on the Internet at: