| N.Y. App. Div. | May 2, 1974
Appeal from a decision of the Workmen’s Compensation Board, filed January 18, 1973, from a reduced earnings award. The sole issue on this appeal is whether an award based on claimant’s week-to-week wage loss was in accord with the provisions of the Workmen’s Compensation Law. Claimant, a mechanic, sustained an accidental back injury on1 March 3, 1966 and was totally disabled until September 26, 1966. Upon returning to work he was assigned to a guard position because he was unable to perform in his former capacity. The board has determined that his subsequent reduced earnings should be computed on a week-by-week basis. Pursuant to subdivision 5-a of section 15 of the Workmen’s Compensation Law, the wage earning capacity of an injured employee is to be determined by his actual earnings. While the general rule is that actual earnings are to be computed on a week-by-week basis, exceptions to this general rule have been made under certain unusual circumstances. (Matter of Taromino v. General Ry. Signal Corp., 38 A D 2d 868; Matter of Burley v. American Locomotive Co., 2 A D 2d 621.) Although there is support in the record for the board’s finding that claimant’s reduced earnings were due to his disability, claimant’s wages fluctuated considerably from week to week, both before and after the accident, due to substantial overtime compensation. In our view, the only fair method of determining claimant’s actual earnings under these circumstances is to select a reasonable period and average his earnings. (Cf. Matter of Taromino v. General Ry. Signal Corp., supra.) Decision reversed, with costs to appellant against the Workmen’s Compensation Board, and matter remitted for further proceedings not inconsistent herewith. Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Main, JJ., concur.