Burley v. American Locomotive Co.
229 N.Y.S.2d 773
| N.Y. App. Div. | 1962

Appeal by claimant from a decision of the Workmen’s Compensation Board which denied reduced earnings (except for one week in which claimant did not work), the board finding that for the 39 weeks’ period in question his average weekly wage was in excess of that prior to his disablement. The periods involved are those, or embraced by those, which were in issue upon a prior appeal (2 A D 2d 621), when we said that by reason of the great variations in claimant’s wages from week to week (fluctuating between a *1003low of $32.34 and a high of $192.69 in the year prior to his disablement and from less than $50 to more than $200 thereafter), “the only fair method of determining his ‘ actual earnings ’ [Workmen’s Compensation Law, § 15, subd. 5-a] is to select some reasonable period and average his earnings.” (p. 622.) This the board has now done. The “very unusual circumstances” here present were noted in another case subsequently decided. (See Matter of Liperman v. Giller, 6 A D 2d 732.) Decision and award unanimously affirmed, without costs. Present — Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.