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.
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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.
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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