State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522938 

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In the Matter of the Claim of

KEVIN KRAZIT,

Appellant,

v

SKI WINDHAM OPERATING MEMORANDUM AND ORDER

CORPORATION et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

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Calendar Date: October 20, 2016

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

__________

Mraz & Gaud PLLC, Albany (Amina Karic of counsel), for

appellant.

William O'Brien, State Insurance Fund, Albany (Edward

Obertubbesing of counsel), for Ski Windham Operating Corporation

and another, respondents.

__________

Aarons, J.

Appeal from a decision of the Workers' Compensation Board,

filed June 4, 2015, which ruled that claimant was not

concurrently employed.

In January 2013, claimant injured his right shoulder while

working as a ski patrol supervisor at a ski area in Greene County

and his claim for workers' compensation benefits was established. 

Claimant was subsequently found to have a 15% schedule loss of
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use of his right arm and his average weekly wage was set. 

Claimant thereafter requested that the calculation of his average

weekly wage be modified to include concurrent earnings from his

New Jersey-based contracting business. Following a hearing, a

Workers' Compensation Law Judge found that claimant's contracting

business did not constitute covered employment for purposes of

Workers' Compensation Law § 14 (6) and denied claimant's request

to modify his average weekly wage. The Workers' Compensation

Board affirmed this decision and claimant now appeals. 

We affirm. Pursuant to Workers' Compensation Law § 14 (6),

"an employee's average weekly wages shall be calculated upon the

basis of wages earned from all concurrent employments covered

under this chapter." A covered concurrent employer "refers to an

employer who falls within the purview of the Workers'

Compensation Law" (Matter of Lashlee v Pepsi Cola Newburgh

Bottling, 301 AD2d 879, 880 [2003]). An out-of-state employer is

not considered to be a covered employer within the meaning of

Workers' Compensation Law § 14 (6) (see id. at 880; Matter of

Abellon v Nyack Hosp., 190 AD2d 128, 129-130 [1993], affd 83 NY2d

812 [1994]).

Here, claimant, who resides in New Jersey, works at the ski

area in New York annually from December to April. The remainder

of the year he operates his wholly-owned contracting business,

which is incorporated in New Jersey and carries a New Jersey

workers' compensation insurance policy that includes coverage for

work in other states, including New York. According to

claimant's testimony, despite his business being incorporated in

New Jersey, approximately 75% of his contracting work took place

in New York in 2012, the year prior to his injury. He also

testified that he has had a home improvement contractor license

issued in Rockland County for 20 years. A review of claimant's

tax returns for 2012 reflects, however, that the only income that

he declared that he had earned in New York for that year was

$3,860, corresponding to his income for working as a ski patrol

supervisor. Inasmuch as "[t]he Board is vested with the

discretion to weigh conflicting evidence and evaluate the

credibility of witnesses, and its resolution of such matters must

be accorded great deference" (Matter of Donovan v BOCES Rockland

County, 63 AD3d 1310, 1312 [2009]; accord Matter of Friedman v
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New York City Dept. of Transp., 69 AD3d 1020, 1023 [2010]), we

find that substantial evidence supports its determination that

claimant's contracting business constituted an out-of-state

employer and, therefore, was not a covered employer within the

meaning of Workers' Compensation Law § 14 (6) (see Matter of

Abellon v Nyack Hosp., 190 AD2d at 129-130; compare Matter of

Lashlee v Pepsi Cola Newburgh Bottling, 301 AD2d at 880-881). In

our view, the fact that claimant may have been eligible for

workers' compensation benefits if he had been injured while doing

contracting work in New York and that he possesses a home

improvement contractor license issued in New York does not compel

a different result.

McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court