245 A.D. 353 | N.Y. App. Div. | 1935
Claimant was employed by the New York Trap Rock Company as a powder and rock man in a stone quarry during
In computing the average earnings of the claimant for the preceding year, the Industrial Board received in evidence and considered the earnings which the claimant himself realized in the service of the trap rock company and in various other employments, amounting in the aggregate to $1,417.75. The Board thereupon fixed the average weekly earnings at $27.26, and a compensation rate of $18.17.
Subdivision 3 provides that the Board shall have regard to the earnings of the claimant, and of the other employees therein mentioned, in determining the amount that “ shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident.” Had the claimant worked in the employment in which he was injured the entire year of 300 days at four dollars a day, his earnings would have amounted in the aggregate only to $1,200.
The premiums paid to the carrier for the purpose of insuring claimant’s compensation were based on his earnings in the employment in which he was injured. The language above quoted from the statute makes the legislative intent clear that the compensation rate should be based upon the contemplated earnings of the claimant in the employment in which he was injured, and not solely upon the income it was possible for him to earn in unrelated employments, nor the income which in fact he did earn in such other employments. Such other earnings should not be substituted for the earnings reasonably to be expected in the employment in which he was injured. It was error for the Board to have fixed the earnings of the claimant at a sum greater than he could reasonably expect to earn in the employment in which he was injured. In view of the evidence in this case, and in particular the intermittent character of work in the employment in question, not only would the justice of an award be open to serious question, if it were in excess of the amount which claimant could reasonably expect to earn in the employment in which he was injured, but the Board had no power under the statute to make an award beyond that sum.
The award should be reversed and the claim remitted to make an award in accordance with this opinion.
Hill, P. J., Crapser, Bliss and Heffernan, JJ., concur.
Award reversed, with costs against the State Industrial Board, and claim remitted to make an award in accordance with opinion.