Opinion
April 18, 1985
Appeal from the Workers' Compensation Board.
The sole issue on appeal is whether the Board properly fixed claimant's average weekly wage. The employer and its carrier contend that claimant's employment as a MVRSAB member was so limited that his compensation rate should be based on actual earnings, not the 200 multiple set forth in Workers' Compensation Law § 14 (3) ( see, Matter of Jacob v. Town of Glenville, 43 A.D.2d 409; Matter of Derion v. Gilford Mfg. Co., 282 App. Div. 788). The record shows that claimant was expected to attend an average of two or three meetings per year. Here, the Board could readily determine that neither Workers' Compensation Law § 14 (1) nor (2) was applicable, leaving Workers' Compensation Law § 14 (3) as the appropriate formula. The only exception would be if claimant voluntarily limited his participation in the labor market ( see, Matter of Miranda v National Med. Care, 59 A.D.2d 962, lv denied 43 N.Y.2d 647; Matter of Stallone v. Liebmann Breweries, 12 A.D.2d 716, affd 10 N.Y.2d 907). In view of claimant's testimony that he was available to attend as many meetings as required and his continued operation of the television repair business, we find ample basis from the entire record to support the Board's calculation of the average weekly wage pursuant to Workers' Compensation Law § 14 (3) ( see, Matter of Terry v. City of Glens Falls, supra; see also, Matter of McMorris v. Montgomery County Agric. Socy., 50 A.D.2d 644; Matter of Gurewicz v. 107 N. Fifth St. Corp., 48 A.D.2d 990; Matter of Birtolo v. First Hous. Co., 41 A.D.2d 872).
Decision affirmed, with costs. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.