The claimant’s average weekly wage (“AWW”) lays the foundation for calculating weekly indemnity payments. It is, therefore, imperative to correctly calculate a claimant’s average weekly wage under the (not-so-clear) provisions of the New York Workers’ Compensation Law (“WCL”). Section 14 (4) of the WCL defines the claimant’s AWW as one fifty-second (1/52) of the claimant’s average annual earnings. Put simply, this means, the claimant’s yearly gross income divided by 52, the number of weeks in a year. This raises the question of calculating a claimant’s yearly income.
Section 14 (1) guides in calculating the annual wage for claimants who worked in the same employment at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury. WCL §14(1). For section 14 (1) to apply, the claimant needs to have had the same job for most of the year preceding his work-related injury, regardless of whether he had the same employer. Id. Once the claimant meets this criterion, his annual earnings are the product of his daily wages and either 260, if he worked 5 days a week, or 300, where the claimant worked six-day weeks. Id.
It is necessary to understand what is construed to constitute “substantially the whole year preceding the injury.” The Employer’s Statement of Wage Earnings, Form C-240, advises that “substantial part of the year” does not require any particular number of days worked, but provides a minimum of 234 days for an employee who works 5-days a week or 270 days minimum for an employee who works 6 days a week as a guideline. A court held that when a worker worked 11 months preceding the injury, he worked for the employer for “substantially the whole year preceding the injury.” Lesperance v Gulf Oil Co., 287 AD2d 839, 840 [3d Dept 2001]. Relying on Lesperance, a Board panel found a worker who worked 40 weeks had worked “substantially the whole of the year immediately preceding his injury.” Janice Taxi Co. Inc., 2003 NY Wrk. Comp. LEXIS 78803, *3 (N.Y. Workers’ Comp. Bd. February 05, 2003).
Using a “Similarly Situated Employee” as Basis for Wages.
If the claimant’s work history is such that, he did not work for substantially the whole year preceding the injury or 234 days, section 14 (2) WCL, allows the claimants’ average annual earnings to be calculated based on a similarly situated employee. WCL §14 (2). The Employer’s Statement of Wage Earnings, Form C-240, contains a clear and unequivocal directive instructing employers to provide the weekly gross earnings of a similar employee where the injured employee did not work for at least 234 days (based on a five-day work week) during the year preceding the injury. Matter of Sacco v Mast Adv./Publ., 71 AD3d 1304, 1307-1308 [3d Dept 2010]. A similar employee, for the purpose of this sub-section, consists of the same class as the claimant and must have worked substantially the whole year immediately preceding the injury in the same or in a similar employment in the same or a neighboring place. Id.; see Cherry v Bethehem Steel Co., 303 NY 889, 890 . In such cases, the “claimant’s average annual wage is determined by applying a statutory multiplier to the average daily wage of “an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place[.]” Sacco, supra.
When does the “Similarly Situated Employee” Apply?
In Sacco, the Third Department stated that using the similarly situated employee method may not apply in certain classes of employees, such as salespersons, whose wages are largely based on commissions. 71 AD3d 1304, 1307-1308 [3d Dept 2010]. The Court reasoned “the income of one individual from commissions offers no accurate method of determining the income of another, and does not reasonably represent the annual earning capacity of an injured employee.” Id. Under such circumstances, the court concluded that “neither of the methods provided for in subdivision[s] 1 and 2 [of Workers’ Compensation Law § 14] can fairly and reasonably be applied, and all of the factors provided for in subdivision 3 should be given consideration, including the actual earnings of claimant, in arriving at a figure which shall reasonably represent the annual earning capacity of the injured employee.” Id.
Under section 14 (3), the claimant’s average annual earnings equal his average daily wage times at-least a 200-multiple. WCL §14 (3). There is a proviso for claimants who are military or police officers, which requires the use of at-least a 240 multiple to calculate the annual average earnings. Id. Courts have long found, “the 200-multiple method is properly used to compute the average weekly wage of a part-time or intermittent [claimant] only where there has been a finding that the [claimant] was fully available for the employment at issue, and should not be applied if a claimant has voluntarily limited his or her availability for work.” Matter of Bain v New Caps, LLC, ___AD3d___, 2018 NY Slip Op 00369, *2 ; citing Matter of Servidio v North Shore Univ. Hosp., 299 AD2d 685, 687, 749 N.Y.S.2d 587  [internal quotation marks, brackets and citations omitted]; see Matter of Hahn v Brylin Hosp., 95 AD3d 1407, 1408, 942 N.Y.S.2d 909 ; Matter of Kellish v Kellish Tire Sales, Inc., 12 AD3d 804, 805, 784 N.Y.S.2d 238 .
To determine a claimant’s AWW when payroll records exists for only a portion of the year prior to the accident, we consider the following factors:
• Did the claimant work a minimum of 234 days? If so, use a 260 multiple for a 5-day worker.
• If the claimant worked less than 234 days, we calculate the claimant’s AWW in accordance with the AWW of a similarly situated employee, who worked at least 234 days prior to the claimant’s accident.
• If there is no similarly situated employee, consider using the 200-multiple method under WCL §14 (3). CAUTION: This method, though available for part-time claimants, is not available where a claimant voluntarily limited his or her availability for work.