Matter of Zaremski v. New Visions ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 18, 2016 520654
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In the Matter of the Claim of
JAMES ZAREMSKI,
Appellant,
v
MEMORANDUM AND ORDER
NEW VISIONS et al.,
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: January 13, 2016
Before: Peters, P.J., Garry, Egan Jr., Rose and Clark, JJ.
__________
Buckley, Mendleson, Criscione & Quinn, PC, Albany (Rebeccah
W. Kane of counsel), for appellant.
Sullivan Keenan Oliver & Violando, LLP, Albany (Ashley M.
Hart of counsel), for Travelers Insurance, respondent.
__________
Peters, P.J.
Appeal from a decision of the Workers' Compensation Board,
filed May 12, 2014, which ruled that claimant was not entitled to
an award of reduced earnings subsequent to January 22, 2013.
In January 2012, claimant suffered an injury to his lower
back during the course of his employment as a general maintenance
repairperson for the employer and did not return to that
employment. At the time of his injury, claimant was also solely
operating a self-owned appliance repair business and, in June
2012, he resumed operating that business on a part-time basis but
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with physical restrictions. His claim for workers' compensation
benefits was established in December 2012, and, following a
hearing on the issue of reduced earning benefits, a Workers'
Compensation Law Judge found that claimant was entitled to
tentative reduced earnings of $300 per week based upon the
difference between his average weekly wage from his employment as
a general maintenance repairperson and his weekly earnings
subsequent to his return to work at his self-employment business.
Upon review, the Workers' Compensation Board modified that
decision and ruled that claimant had no compensable claim for
reduced earnings after January 22, 2013. Claimant appeals, and
we reverse.
A decision of the Board will be deemed arbitrary "if it
departs from prior Board precedent and fails to explain the
reasons for its departure" (Matter of Dicob v AMF Bowling, Inc.,
77 AD3d 1034, 1036 [2010] [internal quotation marks and citation
omitted]; see Matter of Charles A. Field Delivery Serv.
[Roberts], 66 NY2d 516, 520 [1985]; Matter of Winters v Advance
Auto Parts, 119 AD3d 1041, 1042 [2014]). The Board has
previously determined that, although wages from a noncovered
concurrent employment cannot be included in the calculation of a
claimant's average weekly wage pursuant to Workers' Compensation
Law § 14 (6), such wages must be taken into account when
computing a claimant's reduced earnings under Workers'
Compensation Law § 15 (5-a) (see Employer: NYC Bd. of Educ., 2005
WL 3087684, *2, 2005 NY Wrk Comp LEXIS 9711, *4 [WCB No. 0031
7094, Nov. 4, 2005]; Employer: Genesee Region Home Care, 2004 WL
2107404, *2, 2004 NY Wrk Comp LEXIS 13982, *4-5 [WCB No. 7011
3900, Sept. 17, 2004]). Here, contrary to such precedent, the
Board concluded that because claimant's self-employment did not
qualify as concurrent employment to increase his average weekly
wage,1 the earnings from his self-employment could not be
considered in determining claimant's reduced earnings. Inasmuch
as the Board failed to explain its departure from prior Board
1
Claimant conceded, both before the Board and on this
appeal, that his self-employment did not constitute "covered"
concurrent employment within the meaning of Workers' Compensation
Law § 14 (6). Accordingly, we do not address that issue.
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precedent, the decision must be reversed and the matter remitted
for further proceedings (see Matter of Charles A. Field Delivery
Serv. [Roberts], 66 NY2d at 520; Matter of Hills v New York City
Bd. of Educ., 133 AD3d 1079, 1081 [2015]; Matter of Ramadhan v
Morgans Hotel Group Mgt., LLC, 91 AD3d 1141, 1141-1142 [2012]).
In light of our determination, we need not address the
parties' remaining arguments.
Garry, Egan Jr., Rose and Clark, JJ., concur.
ORDERED that the decision is reversed, with costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court