207 A.D. 564 | N.Y. App. Div. | 1924
The Kramer Amusement Corporation, the employer, was operating coaster railways at North” Beach, L. I. The claimant, a boy seventeen years of age, was employed as a “ helper ” and received four dollars per day. While engaged in his regular work his foot was crushed by one of the cars. He worked one day a week, Sunday, and was injured on the morning of July 31, 1921, the third Sunday of his employment. North Beach is a seashore resort and the employment is apparently seasonal. The claimant had not worked in this employment before; it does not appear what were the earnings, during the season, of other employees of the same or similar class, working in same or similar employment, in the same or neighboring locality, or what is the length of the season. There is considerable evidence showing what the claimant had earned while working in other employments as a machinist and a plumber’s helper prior to the time of his injury. The employer and insurance carrier feel aggrieved because of the amount of the average weekly wage fixed.
In all cases, under section 14 of the Workmen’s Compensation Law of 1914, the average weekly wage is the basis upon which compensation must be computed (first clause) and this average weekly wage shall be one-fifty-second part of his average annual earnings (Subd. 4). The word “ employment ” included “ employment only in a trade, business or occupation carried on by the employer for pecuniary gain, or in connection therewith. * * * ” (Workmen’s Compensation Law of 1914, § 3, subd. 5, as amd. by Laws of 1917, chap. 705.) One may work in the same “ employment ” “ whether for the same employer or not.” (Workmen’s Compensation Law of 1914, § 14, subd. 1.) In computing the average weekly wages we are confined to all cases to earnings in the11 employment ” in which the claimant
Where the claimant is a minor, if it appears that, under normal conditions, Ms wages would be expected to increase, tMs fact may be considered in arriving at Ms average weekly wages. (Workmen’s Compensation Law of 1914, § 14, subd. 5.) In the case of a
Upon this record not only the testimony of the employer, but the vacillating and unintelligent answers of the claimant himself, would indicate that his wages in this employment could not under normal conditions be expected to increase. In any event he cannot attain more than eight dollars per day. All employees, except the brakeman, are paid four dollars a day. The brakemen are paid eight dollars a day but must be skillful and competent men. The method adopted by the State Industrial Board in computing the compensation is not in conformity with section 14 of the Workmen’s Compensation Law of 1914. On the evidence in this case, the annual earning capacity, in this seasonal employment, of the claimant, or of other employees of the same class, working in the same or most similar employment, in the same or neighboring locality, cannot be determined. The award should, therefore, be reversed and the claim remitted for further proof and consideration in accordance with this opinion.
All concur, except Hasbrouck, J., not voting, not now being a member of the court; Cochrane, P. J., not sitting.
Award- reversed, with costs against the State Industrial Board, and claim remitted for further proof in accordance with opinion.