The Office of General Counsel issued the following opinion on November 20, 2003, representing the position of the New York State Insurance Department.
Re: No-Fault Lost Wages-Overtime
When an eligible injured person is unable to work due to an automobile accident, may loss of earnings benefits available under No-Fault include overtime pay that such person regularly earned during the course of his or her employment, in addition to the annual base salary.
Yes. Lost overtime wage benefits are eligible for reimbursement pursuant to Section 5102(a)(2), subject to the applicable limitations on reimbursement per month as specified in the applicable policy.
The inquirer stated that an officer employed by the New York City Police Department, who was injured in an automobile accident while off-duty, regularly earned overtime pay in addition to his regular salary. Under his No-Fault coverage, the officer was eligible for loss of earnings benefits of up to $3,000 a month. The police department continued to pay the officer his regular salary while he was unable to work. The inquirer asked whether the overtime pay, that the officer would earned had he not been injured, was reimbursable under No-Fault.
Pursuant to N.Y. Ins. Law § 5102(a)(2)(McKinney 2000), No-Fault benefits include "Loss of earnings from work which the person would have performed had he not been injured ."
The proper measurement in the calculation of No-Fault benefits is contained in N.Y. Comp. Codes R. & Reg. § 65-3.16(b)(3)(2002)(Regulation 68), which provides that "loss of earnings from work shall not necessarily be limited to the applicants actual level of earnings at the time of the accident, but may also include demonstrated earnings reasonably projected."
In order to be eligible for No-Fault reimbursement, lost wages must be derived from work which the eligible person would have performed had the person not been injured. Those lost wages include demonstrated future earnings "reasonably projected." Therefore, when an injured person can demonstrate that they could reasonably expect to earn overtime wages of a projected amount, but for being injured, those lost wages would be reimbursable under No-Fault.
For further information one may contact Supervising Attorney Lawrence M. Fuchsberg at the New York City Office.