Under the seminal decision in Tucker v.

New York City Health and Hospital Corporation, 188

A.D.2d 34 (3d. Dept. 1993), this has been interpreted as placing a ceiling on the primary
employers liability.

Therefore, in all cases, the maximum liability of the primary employer is two-thirds of its
average weekly wage, subject to the maximum rate based on the date of accident.

The extent of the reimbursement is dependent on the degree of the claimants disability,
and if the claimant has returned to work, whether they returned to the PE (Primary
Employer) the CE (Concurrent Employer), or a third employer.

Please understand that the liability of the PE or Special Funds can NEVER exceed two-thirds of
their respective average weekly wages.
PES LIABILITY AWW @ PE
SPECIAL FUNDS LIABILITY AWW @ CE

Tucker v. New York City Health and Hospitals Corporation, 188 A.D.2d 34 (3d. Dept.
1993)
o 14(6) has been interpreted as the Workers Compensation Board as placing
a ceiling on the carriers liability when determining what reimbursement is
due from Special Funds.
o Claimant is injured in an accident arising out of and in the course of her primary
employment as a nurse where she earns $300.00 per week. She has covered
concurrent employment, also as a nurse, where she earns $350.00 per week
entitling her to an average weekly wage of $650.00. The claimant is ultimately
able to return to work at the concurrent employer earning $400.00 and she was
classified with having a permanent partial disability. She was not able to return to
her employment at the primary employer because of her disability. Because of the
reduction in the amount she was able to earn after the accident she was entitled to
actual reduced earnings of $166.67 RE ($650.00 - $400.00 = $250.00 * 2/3 =
$166.67). The employer is liable for the entire reduced earnings award because it
does not exceed the ceiling on its liability of $200.00 (2/3 * $300.00 = $200.00).

Ryan v. Metropolitan Property & Liability, 242 A.D.2d 836 (3d. Dept. 1997)
o Tucker is properly applied to a situation where the claimant returns to the
concurrent employer.
o Claimant is injured in an accident arising out of his primary employment as a mail
clerk. He earns $250.00 per week. He is also employed as a waiter at covered
concurrent employment at the time of the accident. He earns $250.00 per week at
this employment. He returned to work at a third employer, as a waiter, earning
$250.00 per week, entitling him to actual reduced earnings of $166.67. Because
Tucker applies, the employer and carrier are liable for the reduced earnings award
up to their maximum liability, or for the ceiling of its liability, the employer will
not receive any reimbursement from Special Funds and will be liable for the

entire reduced earnings award. The result should be the same if the claimant had
actually returned to the concurrent employer instead of to employment similar to
the concurrent employment.

Foti-Crawford v. Buffalo General Hospital, 250 A.D.2d 161 (3rd Dept. 1998)
o Under some circumstances, Special Funds may be liable to reimburse the
carrier or employer for reduced earnings that would lead to the carrier
having less than its ceiling on liability based on its average weekly wage
alone.
o Example: Claimant is injured in an accident arising out of the course of her
primary employment as a nurse. She earns $600.00 per week from this
employment. She also has covered concurrent employment as a nurse at a second
employer at the time of the accident. She earns $300.00 there. She is able to return
to the primary employer but her injury prevents her from returning to her
concurrent employment. She earns $600.00 per week after her return. This entitles
her to reduced earnings of $200.00. The employers maximum liability, the ceiling
on its liability, is $400.00 (2/3 * $600.00 = $400.00). Special Funds is liable for
the entire award and will be required to reimburse the carrier for the full amount
of the reduced earnings award of $200.00, despite the fact that this does not
exceed the employers maximum liability.
o Special Funds successfully argued in Evans, supra, that Foti-Crawford does not
abandon the holding in Tucker; rather it carves out a limited exception. If, after
application of Tucker there are additional circumstances that would make
application of Tucker unreasonable, such as here where the claimant has returned
to work for the primary employer earning as much of then more than as she had
when she was injured, there is more justification for viewing the claimants
entitlement to reduced earnings as arising from the concurrent employment.
o If the claimant has returned to work at the primary employer and is earning at
least as much as when she was injured, agree to reimburse the full amount of
the reduced earnings award. If the claimant is not earning as much at the
primary after a return to work, argue for the ceiling theory.
Does not abandon Tucker, but is exception.
If clmt has returned to work AT THE PRIMARY EMPLOYER and is
EARNING AT LEAST AS MUCH AS WHEN INJURED, agree to
reimburse full amount of the reduced earnings award.

Evans v. Plattsburgh Construction, 96 N.Y.2d 721, 759 N.E.2d 372 (2001)

o The ceiling theory is properly applied to reimbursement of reduced earnings
awarded to claimant who had covered employment at the time of an injury.
o Example: Claimant is injured in an accident arising out of his primary
employment as a construction worker. He earns $300.00 per week. He has
concurrent covered employment as a construction worker at a second employer at
time of the accident. He earns $900.00 per week at the concurrent employer. He
returns to work at a third construction company earning $600.00 per week. He is
entitled to actual reduced earnings of $400.00 week. The employer is liable for
reduced earnings in the amount of $400 per week, its ceiling on liability (2/3 x

$300.00 = $200.00) and will therefore receive reimbursement from Special Funds
of $200.
o This case reconciled Tucker, Ryan, and Foti-Crawford and applied Tucker to
reach a result that might not seem logical under the statute. Note that the carrier
will argue that if there had been no concurrent employment, its liability would be
zero since the claimant returned to work earning in excess of his average weekly
wage. Although the language of the statute might support such an interpretation,
neither the Board nor the Third Department has interpreted the statute this way.
The rule under Tucker is essentially whether or not the carriers liability would be
greater after the enactment of the statute, 14(6), than before. If not, the ceiling
theory is applied. Foti-Crawford carves out an exception.
Tucker rule whether or not the carriers liability would be greater
after the enactment of the statute 14(6) than before. If not, ceiling
theory applied. Foti-Crawford exception.
CALCULATIONS
Calculating Reimbursement for Total Disability
In all cases where the claimant is totally disabled, the PE is liable for two-thirds of its average
weekly wage, subject to the maximum for that date of accident without reimbursement. Special
Funds is liable for the difference between the claimants total rate based on the aggregate average
weekly wage and the PEs liability. This results from straightforward interpretation of the statute.
PES LIABILITY = * (PES AWW) MAXIMUM LIABILITY FOR
TOTAL DISABILITY BASED ON DATE OF ACCIDENT
SPECIAL FUNDS LIABILITY = AWARD PES LIABILITY

Calculating Reimbursement for Schedule Loss of Use Awards

Schedule Loss of Use Awards After 7/1/92: The calculation for a schedule loss of use award
after 7/1/92 when the maximum rate for partial and total disability was changed to $400.00 is
the same as the calculation for temporary or permanent total disability described above. The
carrier is liable for two-thirds of its average weekly wage up to $400.00 without reimbursement
and Special Funds is liable for the difference between that and the award.
PES LIABILITY = * (PES AWW) $400.00
SPECIAL FUNDS LIABILITY = AWARD PES LIABILITY

Schedule Loss of Use Awards Before 7/1/92: The calculation for a schedule loss of use award
before 7/1/92 requires ascertainment of the maximum partial rate for that date of accident. The
PE is liable for up to two-thirds of its average weekly wage up to the maximum partial rate for
that date of accident. Special Funds is liable for the difference between the permanent partial
disability award and the PE's maximum liability. Awards for temporary total disability are made
as indicated above.

PES LIABILITY = * (PES AWW) MAXIMUM LIABILITY FOR

PARTIAL DISABILITY BASED ON DATE OF ACCIDENT
SPECIAL FUNDS LIABILITY = AWARD PES LIABILITY

Calculating Reimbursement When the Claimant Has Not Returned to Work

Reimbursement under 14(6) is dependent upon the claimants earning capacity and as long as
the percent of the claimants disability, or the mirror image of the claimants degree of disability,
his earning capacity, is established, calculating reimbursement is a straightforward proposition,
IF THE DEGREE OF DISABILITY OR EARNING CAPACITY IS SET AT THE TIME OF
THE HEARING.
The PEs liability without reimbursement and Special Funds liability are calculated by:
PES LIABILITY = * AWW @ PE * DEGREE MAXIMUM PARTIAL
RATE
SPECIAL FUNDS LIABILITY = AWARD PES LIABILITY

NOTE: In cases where the reduced earnings are less than the maximum partial rate, the degree
of disability can be derived by the rate itself by expressing the figures as a fraction. However, if
the reduced earnings are awarded at the maximum partial rate because the calculation would
exceed the statutory maximum, the degree of disability cannot be determined by backing into
the degree of disability, and therefore, THE DEGREE OF DISABILITY MUST BE SET AT
THE TIME OF THE HEARING. JUST DO IT. The formula for calculating the claimants
degree of disability when the RE rate does not exceed the maximum partial rate is set forth
below:
(RE MAXIMUM PARTIAL RATE) / ( * CLAIMANTS AWW) = DEGREE
OF DISABILITY

Calculating Reimbursement When the Claimant HAS Returned to Work

When the claimant returns to work, her actual earnings presumptively demonstrate her earning
capacity. Where the claimant returns to work must be known to calculate the carriers
entitlement to reimbursement. The following attempts to address almost every potential return to
work scenario.
Claimant Has Reduced Earnings After Returning to Work Only at the PE: If the claimant only
returns to work for the PE earning at least as much or more at the PE as he or she had before the
accident, Special Funds should reimburse the entire award. This will also be true if the claimant
returns to work at the PE and CE earning at least as much at the PE as before the accident, or at

the PE and a third-employer earning at least as much at the PE as before the accident. (See FotiCrawford v. Buffalo General Hospital, 250 A.D.2d 161 (3rd Dept. 1998) and the examples below.)
* (AWW EARNINGS) = SPECIAL FUNDS LIABILITY

Claimant only returns to work at the PE earning less at the PE than at the PE before the
accident: In these cases, first calculate the claimants reduced earnings and then calculate the
claimants reduced earnings as though the only employment she had was the employment at the
PE. The difference is Special Funds liability. If the calculation of the PEs liability exceeds the
maximum partial rate, the PE is liable for the entire award without reimbursement.
PES LIABILITY = * (AWW @ PE RTW EARNINGS @ PE)
MAXIMUM PARTIAL RATE
SPECIAL FUNDS LIABILITY = ARE PES LIABILITY

Claimant Has Reduced Earnings After Returning to Work Only at the CE: This is the flip side
of a case where the claimant only returns to work at the PE earning at least as much as before the
accident. In cases where the claimant only returns to work at the CE earning at least as much or
more at the CE as before the accident, the entire award is payable by the PE without
reimbursement. See Tucker v. New York City Health and Hospitals Corp., 188 A.D.2d 34 (3rd
Dept. 1993).
* (AWW EARNINGS) = PES LIABILITY

Claimant Only Returns to Work at the CE But Earns Less at the CE Than Before the
Accident: This is the flip side of a case where the claimant only returns to work at the PE earning
less at the PE than before the record. In these cases, the PE is responsible for up to two-thirds of
its AWW (its maximum liability), without reimbursement, and Special Funds is liable for the
difference if any.
PES LIABILITY = * (AWW RTW EARNINGS)
* AWW @ PE AND MAXIMUM PARTIAL RATE
SPECIAL FUNDS LIABILITY = ARE AWARD PES LIABILITY

Claimant Has Reduced Earnings After Returning To Work Only At A Third Employer:
Calculate the PEs maximum liability based on its average weekly wage alone and it is
responsible for the entire reduced earnings award up to its maximum liability. Special Funds is
responsible for reimbursement of the excess. Because the claimant returned to work at a third
employer, there is obviously no way to compare whether the earnings are more or less than
before the accident. See Ryan v. Metropolitan Property & Liability, 242 A.D.2d 836 (3rd Dept.
1997), Evans v. Plattsburgh Construction, 277 A.D.2d 765 (3rd Dept. 2000), and Spurck v. Avis
Rent-A-Car, 290 A.D.2d 600 (3rd Dept. 2001).

PES LIABILITY = AWARD * (AWW @ PE) AND MAXIMUM

PARTIAL RATE
SPECIAL FUNDS LIABILITY = ARE AWARD PES LIABILITY

Claimant Has Reduced Earnings After Returning to Work At The PE and the CE: If the
claimant is earning at least as much or more at the PE after returning to work as she had been
earning at the PE before the accident, and therefore less at the CE, Special Funds is responsible
for reimbursing the entire award less than or equal to the maximum partial rate. The employers
liability without reimbursement will be zero. This is most analogous to the Foti-Crawford fact
pattern.
SPECIAL FUNDS LIABILITY = * (AWW EARNINGS)
MAXIMUM PARTIAL RATE

Claimant is earning at least as much at the CE after the return to work than she had been
earning at the CE before the accident: If the claimant returns to work at both the PE and the CE
making less in aggregate than he or she had been before the accident, but least as much or more
at the CE after his return to work than before than before the accident, (and therefore less at the
PE after his return to work than before the accident), the PE is liable for the entire award without
reimbursement. This comports with the decision in Tucker.
PES LIABILITY = * (AWW RTW EARNINGS) MAXIMUM
PARTIAL RATE

Claimant is earning less at both the PE and the CE after the return to work than she had been
earning at each before the accident: If the claimant returns to work for both the PE and the CE
making less at each than he or she had been before the accident, calculate the liability of each
without reference to the other. If the PEs liability ALONE generates the maximum rate, it is
solely liable without reimbursement. Otherwise, each is liable for the RE it produces based on
its AWW and RTW earnings.
Please note the anomalies when either the ARE from the PE alone, or the ARE from the CE
alone exceeds the maximum partial rate. If two-thirds the difference between the AWW at the
PE minus the earnings from the RTW at the PE generates the maximum partial rate, the PE is
responsible for the entire award. Conversely, if two-thirds of the AWW at the CE minus the
RTW earnings at the CE generates the maximum rate, Special Funds is liable only for the
difference between the ARE award and the PEs liability. These disparate results are supportable
under Tucker, Foti-Crawford, Ryan, Evans and Spurck and the language of the statute.
PES LIABILITY = * (AWW@ PE RTW EARNINGS @ PE)
UNLESS * (AWW @ PE RTW EARNINGS @ PE) MAXIMUM
PARTIAL RATE; IF SO PE IS LIABLE WITHOUT REIMBURSEMENT

SPECIAL FUNDS LIABILITY = * (AWW @ CE RTW EARNINGS @

CE)
UNLESS * (AWW @ CE RTW EARNINGS @ CE) MAXIMUM
PARTIAL RATE; IF SO SPECIAL FUNDS LIABILITY IS AWARD
PES LIABILITY

Claimant Has Reduced Earnings After Returning to Work at the PE and a Third Employer: If
the claimant has reduced earnings after returning to work at the PE and a third employer earning
at least as much or more at the PE as before the accident, Special Funds will be responsible for
reimbursing the entire award. See Foti-Crawford.
SPECIAL FUNDS LIABILITY = * (AWW RTW EARNINGS)
MAXIMUM PARTIAL RATE

Claimant returns to work at the PE and a third employer earning less at the PE than before
the accident: If the claimant returns to work for the PE and a third employer but is not earnings
as much at the PE after the accident as she had before, then the employer is liable for the reduced
earnings up to its maximum liability and Special Funds is responsible for reimbursing the excess.
PES LIABILITY = * (AWW RTW EARNINGS) * (AWW @ PE)
AND MAXIMUM PARTIAL RATE
SPECIAL FUNDS LIABILITY = AWARD PES LIABILITY

Claimant Has Reduced Earnings After Returning to Work at The CE and a Third Employer:
If the claimant returns to work at the CE and a third employer, the PE is liable for the entire
award up to its maximum liability. Special Funds is liable for any excess above the PEs
maximum liability.
PES LIABILITY = (AWW RTW EARNINGS) AWW @ PE AND
MAXIMUM PARTIAL RATE
SPECIAL FUNDS LIABILITY = ARE AWARD PES LIABILITY

ETC.

Matter of Jaworek v. Sears Roebuck, 67 A.D.3d 1161 (3d. Dept. 2009), Mot. For lv
pending Appellate Result: SFCC did prevail as Appellant.
o The Board denied the carrier concurrent employment reimbursement from the
Special Funds for this July 28, 2007 accident under the new amendments WCL
15-8(h)(2)(a). The Court affirmed the Board finding that the statute was clear and
unambiguous and that there was no reimbursement from the Special Disability
Fund for accidents occurring on or after 7/1/07, and that this conformed with the
legislative intent. If form C-250 timely filed and 15-8 not established until
3/13/08 or later, and carrier paid out expenses more than one year prior to date 158 established at Board: then carrier can still get reimbursed as long as request for

reimbursement is made within one year from date when 15-8 liability is
established.

Schroeter v. Grand Hyatt Hotel, 262 A.D.2d 725 (3d. Dept. 1999)
o The doctrine of laches can bar a claimant from an enhanced average weekly wage
by virtue of her concurrent employment especially if Special Funds is prejudiced
by the unreasonable delay in making a claim. Special Funds has standing to
litigate the basic issues of compensability in a claim involving a claim for
concurrent employment.
o Claimant is injured on 1/1/90 during the course of her primary employment where
she earns $300.00 per week. She is also concurrently employed and the
employment is covered. She earns $200.00 per week. The claim is established and
the claimants average weekly is established at $300.00 using her wages from her
primary employment only. She is awarded benefits at total for a period and
ultimately is classified with having a permanent partial disability. Her claim is
closed in 1994 with an award at a reduced earnings rate. Based on evidence that
the claimant was earning in excess of her established average weekly wage, the
claim is reopened in 1996. At a subsequent hearing, the claimant testified that at
the time of the injury she was also employed at the concurrent employer. She at
that time made a claim for an enhanced average weekly wage by virtue of her
covered concurrent employment.
o The claim was clearly unreasonable, and explanations for the delay lack merit.
Furthermore, the Third Department noted that the delay prejudiced Special Funds
by not affording it the opportunity to properly investigate the claim and that
Special Funds has an interest in investigating the underlying claim. This decision
should be interpreted as giving Special Funds standing in a concurrent
employment claim that it does not enjoy in 15(8)(d) claims under the decision in
Ruffino. Under this decision, because the Third Department found that Special
Funds has an interest in investigating, the underlying claim, our position is that
we have standing to litigate the basic issues of compensability. When we are
denied that opportunity, either we should be given an opportunity to develop the
record, or the issue of prejudice and laches should be raised.
o TheDoctrineofLachesconsistsofthefollowingelements:
1.Unreasonablelapseoftime.
2.Neglecttoassertarightorclaim.
3.Tothedetrimentofanother.
Ifthesethreeelementsaremet,thentheDoctrineofLacheswillactasabar
incourt.
Ifanadversepartyunreasonablydelaysinformingyouofarightorclaim
andthisresultsinpermanentdamagetoyourabilitytodefendyourselfthen
suchaclaimmaybebarredfromcourt.