State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 18, 2016 520654 

________________________________

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