| Matter of Keefe v Aramatic Refreshment Servs. Inc. |
| 2013 NY Slip Op 07116 [110 AD3d 1429] |
| October 31, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Daniel Keefe, Appellant, vAramatic Refreshment Services Inc. et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Law Office of Joseph Buttridge, New York City (Daniel W. Gracey of counsel), forAramatic Refreshment Services Inc. and another, respondents.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filedAugust 2, 2012, which ruled, among other things, that claimant was entitled to workers'compensation benefits at the marked partial disability rate.
Claimant has two established workers' compensation claims for back injuries thatoccurred in 2004 and 2009, and his benefits are apportioned equally between the claims.Although the parties agreed that claimant had a temporary total disability until January2012 and thereafter was entitled to benefits at the temporary partial disability rate, theemployer and the workers' compensation carrier responsible for the 2009 claim arguedthat the amount of benefits for which they were liable should be calculated usingclaimant's 2009 wages instead of his higher 2004 wages. The Workers' CompensationBoard agreed, and claimant now appeals.
Workers' Compensation Law § 15 (5) provides that, "[i]n case of temporarypartial disability resulting in decrease of earning capacity, the compensation shall betwo-thirds of the [*2]difference between the injuredemployee's average weekly wages before the accident and his [or her] wage earningcapacity after the accident in the same or other employment." Wages, in turn, aredetermined with reference "to the latest 'injury' when there have been two or more"(Matter of Meszaros v Goldman, 307 NY 296, 300 [1954]; see Workers'Compensation Law §§ 2 [9]; 15 [5-a], [7]). Accordingly, claimant's 2009earnings were correctly used to calculate the employer's liability under that claim. Indeed,to hold otherwise would run afoul of the statutory directive that compensation for a later,successive claim be determined using a claimant's "earning capacity at the time of thelater injury" (Workers' Compensation Law § 15 [7]; see Matter of Crawley vFailla, 6 NY2d 57, 62-63 [1959]; Matter of Carle v New York Bus. Bldg.Corp., 11 AD2d 570, 570-571 [1960]).
As a final matter, the award for the period of temporary total disability was reducedby the Board, without explanation, to reflect a "marked temporary partial disability." Theparties agree that this was error, and we remit this matter so that the Board may addressthis issue (see Workers' Compensation Law § 15 [2]).
Peters, P.J., McCarthy and Spain, JJ., concur. Ordered that the decision is modified,without costs, by reversing so much thereof as found that claimant was entitled tobenefits from February 9, 2011 to January 23, 2012 at the marked temporary partialdisability rate of $154.78 per week in his 2009 workers' compensation claim; matterremitted to the Workers' Compensation Board for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.