Opinion
2011-10-6
In the Matter of the Claim of Juan BRAN, Respondent,v.Ralph WIMBUSH, Appellant, et al., Respondent.Workers' Compensation Board, Respondent.
John F. Clennan, Ronkonkoma, for appellant.Eric T. Schneiderman, Attorney General, New York City (Iris A. Steele of counsel), for Workers' Compensation Board, respondent.Before: PETERS, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.
SPAIN, J.
Appeal from a decision of the Workers' Compensation Board, filed September 15, 2010, which established claimant's average weekly wage.
Claimant was injured when he fell off a ladder while performing sheetrocking work for the employer. When this matter was previously before us, we modified a
determination of the Workers' Compensation Board by reversing that portion that calculated claimant's average weekly wage at $620 (73 AD3d 1378, 901 N.Y.S.2d 398 [2010] ). Upon remittal, the Board recalculated claimant's average weekly wage at $500. The employer now appeals.
We affirm. On appeal, the employer asserts that claimant is an undocumented worker who is not legally entitled to earn any wages and, therefore, no average weekly wage should be established. Inasmuch as this argument was not raised at the administrative level, it is not properly before us ( see Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001]; Matter of Toner v. Michael Hanley Moving & Stor., 40 A.D.3d 1199, 1200, 834 N.Y.S.2d 728 [2007], lv. denied 9 N.Y.3d 808, 843 N.Y.S.2d 537, 875 N.E.2d 30 [2007]; Green v. New York City Police Dept., 34 A.D.3d 262, 263, 825 N.Y.S.2d 9 [2006] ). Based upon the record before us, which reflects that claimant worked for the employer three to four days a week at a rate of $130 per day, we conclude that the Board's calculation of claimant's average weekly wage upon remittal was proper ( see Workers' Compensation Law § 14[3], [4]; Matter of Fletcher v. Wegmans, 24 A.D.3d 1015, 1016, 805 N.Y.S.2d 494 [2005], lv. denied 6 N.Y.3d 710, 814 N.Y.S.2d 599, 847 N.E.2d 1172 [2006] ).
ORDERED that the decision is affirmed, without costs.
PETERS, J.P., STEIN, McCARTHY and GARRY, JJ., concur.