Claim of Zicherman v. Zicherman , 186 N.Y.S.2d 792 ( 1959 )

Appeal by the appellant carrier from an award of compensation for reduced earnings. Claimant, a baker, worked for the employer, his wife, on or before January, 1954 to the date of the accident, May 26, 1954, thereafter returning to work in September, 1954 and receiving partial disability benefits until August, 1956. Prior to this employment he worked as a baker for a partnership, he being one of the partners. He had always been a baker. He testified that while working for the “employer” he received $59 a week plus a bonus — paid after date of accident ■ — ■ bringing his weekly wages to approximately $89. The board found that “claimant’s earnings for a year prior to the accident does not represent a substantial portion of a year, and the Board holds that claimant’s average weekly wage should be figured in accordance with the provisions of Section 14, subdivision 2 of the Workmen’s Compensation Law” (based upon wages of employees in same or similar employment). This permitted the introduction of testimony aside from actual earnings which resulted in the board finding that the average weekly wage of claimant was $192. ¡Subdivision 1 of section 14: “If * * * worked in the employment” in which he was working “at the time of the accident * * * during substantially the whole of the year”, actual earnings being the basis of reduced earnings. From a review of the record we feel the board erred in its interpretation of the statute. There is no dispute that claimant worked in the same employment for a year prior as a baker, even though part of it he might have been working for a partnership of which he was a member and that $59 — certainly $89 — was fair compensation sufficient to justify and satisfy the mandate of subdivision 1 of section 14. The norm of the law is to see that a claimant is properly compensated. It is not to be interpreted in an unjustifiable or unreasonable manner or as an economic windfall. Award and decision reversed and matter remitted, with costs to the appellant against the Workmen’s Compensation Board. Foster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ. concur.