| Matter of Hope v Warren County Bd. of Elections |
| 2011 NY Slip Op 08543 [89 AD3d 1365] |
| November 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Hazel Hope, Respondent, v Warren CountyBoard of Elections, by and through Warren County Self Insurance Plan, Appellant. Workers'Compensation Board, Respondent. |
—[*1] Martin, Harding & Mazzotti, L.L.P., Albany (Michael D. Violando of Sullivan, Keenan, Oliver &Violando, L.L.P. of counsel), for Hazel Hope, respondent. Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel), for Workers'Compensation Board, respondent.
Stein, J. Appeal from a decision of the Workers' Compensation Board, filed September 1, 2010,which ruled that the employer was not entitled to reimbursement from the Special Disability Fund.
On November 3, 2009, claimant sustained an injury while working for the employer as a pollinginspector. At the time of the injury, claimant also maintained concurrent employment with a retailclothing store. Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ)established claimant's average weekly wage with the employer to be $3.56 and her average weeklywage from her concurrent employment to be $77.13. Using these figures, the WCLJ determined thatclaimant's total average weekly wage was $80.69. The WCLJ made awards for claimant's concurrentemployment average weekly wage for the time periods of claimant's temporary total and temporarypartial disability and directed the employer's workers' compensation carrier to continue awards at thetemporary partial disability rate of $80.69 per week. The carrier appealed this decision to the Workers'Compensation Board, arguing, among other things, that awards should have been based only onclaimant's primary average weekly wage of $3.56 inasmuch as it could no longer obtain reimbursementfrom the Special Disability Fund for additional amounts attributable to an employee's concurrentemployment. The Board affirmed the WCLJ's decision, prompting this appeal by the carrier.
We affirm. Workers' Compensation Law § 14 (6) provides that, where an injured employeehas concurrent employment, compensation is computed based upon the combined average weeklywage of those employments and payment for that compensation is made in the first instance by theprimary employer in whose employment the injury occurred. For accidents or illnesses occurring priorto July 1, 2007, the primary employer was eligible for reimbursement from the Special Disability Fundof any amounts in excess of the compensation that the claimant would have received had there been noconcurrent employment. However, Workers' Compensation Law § 14 (6) was amended so asto provide that reimbursement from the Special Disability Fund would only be available for claimspresented in accordance with the newly enacted Workers' Compensation Law § 15 (8) (h) (2)(A) (see L 2007, ch 6, § 77). Notably, that statutory provision bars any reimbursementfrom the Special Disability Fund for claims with a date of accident or disablement on or after July 1,2007 (see L 2007, ch 6, §§ 76, 77).
Here, consistent with this Court's recent decision in Matter of Jaworek v Sears Roebuck & Co. (67 AD3d 1161 [2009],lv denied 14 NY3d 704 [2010]), the Board found concurrent employment pursuant toWorkers' Compensation Law § 14 (6) and determined that claimant's benefits were properlycalculated based upon both employments. Nonetheless, the carrier argues that the sentence in thatstatute providing that primary employers "shall be liable for the benefits that would have been payable ifthe employee had had no other employment" (Workers' Compensation Law § 14 [6]) operatesto impose a ceiling that limits the liability of primary employers, and that the ceiling survived the 2007amendments. We do not agree. Clearly, this statutory phrase does not rule out greater liability on thepart of the primary employer, and the carrier's citation to cases from this Court decided prior to the2007 amendments does not call for a different result (see e.g. Matter of Tucker v New York CityHealth & Hosps. Corp., 188 AD2d 34, 37 [1993]). Nor does the amended statutory languageprovide support for the proposition that concurrent employment should no longer be taken into accountwhen calculating a claimant's average weekly wage. Indeed, the unambiguous language of Workers'Compensation Law § 14 (6) expressly provides that the injured employee's "average weeklywages shall be calculated upon the basis of wages earned from all concurrent employments." Notably,the overall purpose of the Workers' Compensation Law is to provide benefits payable by an employerto an employee injured in the course of employment, without regard to fault (see NY Const, artI, § 18). The legislative history of the 2007 amendments indicates that, as relevant here, itspurpose was to close the Special Disability Fund to new claims (see Sponsor's Mem, BillJacket, L 2007, ch 6). We find nothing in the legislative history indicating that the Legislature intendedthat injured workers receive reduced benefits as a result of the phasing out of that Fund. Thus, wedecline to disturb the Board's decision.[*2]
The remaining arguments advanced by the carrier have beenexamined and found to be unpersuasive.
Mercure, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the decision isaffirmed, without costs.