Estate of Robert Berry v. 1st Rate Bait

Insurance Company


Date Decided

February 28, 2022

Panel Members

Elizabeth Elwin

Evelyn Knopf

Tom Pelletier


Average Weekly Wage 14-Day Rule 14-Day Rule Average Weekly Wage


File Size

130 KB


Summary from the Troubh Heisler Attorneys

Robert Berry v 1st Rate Bait – Mr. Berry worked at various restaurant jobs before taking a work-release job at 1st Rate Bait as its first employee. He cut his fingers there and needed surgery before returning to work. He then was laid off, and he filed a Petition for Award, copy to 1st Rate, which was uninsured. 1st Rate immediately filed a First Report of Injury but was apparently three days late filing a Notice of Controversy.

Although Berry did not offer direct evidence of when 1st Rate received notice of the claim, Judge Collier inferred it was when they filed the FROI. He found a 14-day violation and ordered benefits, and he calculated Berry's AWW by dividing Berry’s earnings at 1st Rate by only the few weeks he worked there.

1st Rate appealed, but the Appellate Division affirmed the decision on both counts. The panel found that the “seasonal worker" statute did not apply to this case because Berry was customarily employed for more than 26 weeks per year, and that the 14-day rule was fairly applied.

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