New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on July 8, 2004, representing the position of the New York State Insurance Department.

RE: No-Fault Loss of Earnings of Per Diem Worker

Question Presented:

Is an eligible injured person claiming No-Fault loss of earnings entitled to more than one day’s wages as a per diem worker when the inquirer alleged there is proof that the eligible injured person was a per diem worker for 27 weeks?

Conclusion:

Pursuant to N.Y. Ins. Law § 5102(a)(2)(McKinney 2000), if the eligible injured person can demonstrate, based upon sufficient evidence, that she would have received per diem wages during the period of unemployment, she would be entitled to the appropriate amount of No-Fault benefits.

Facts:

The inquirer represents an injured party claiming No-Fault loss of earnings. The insurer has paid one day’s wages as a per diem worker. The inquirer included what is titled "Employer’s Wage Verification Report," dated February 13, 2004, containing information that states that the injured party’s employment period was 27 weeks long.

Analysis:

Pursuant to N.Y. Ins. Law § 5102(a)(2) (McKinney 2000), No-Fault benefits include loss of earnings from work that a person would have performed if not for the injury. N.Y. Comp Codes R. & Regs. tit. 11, § 65-3.16(b)(3) (2001) (Regulation 68-C) provides that such "loss of earnings from work shall not necessarily be limited to the applicant’s actual level of earnings at the time of the accident, but may also include demonstrated earnings reasonably projected…" Therefore, if the eligible injured person can demonstrate, based upon sufficient evidence, that she would have received per diem wages during the period of unemployment, she would be entitled to the appropriate amount of No-Fault benefits.

For further information you may contact Associate Attorney Jeffrey A. Stonehill at the New York City Office.