Calculation of a claimant’s Average Weekly Wage (AWW) is dependent on the number of days and months worked, as well as the type of employee that he was at the time of the injury (e.g., a part-time or seasonal worker). NY WCL Section 14 provides a breakdown of how a claimant’s AWW is to be calculated. The generally-accepted method of calculating the AWW is to divide the total annual wages by the number of weeks worked. This is called the “straight division method”, and it is usually not a problem when the claimant worked for 52 weeks (give or take a few weeks) in the year prior to the accident. However, there are several circumstances under which a different method of calculation is warranted:
- If the claimant worked in the same industry for the prior year, and was a five day worker, the total wage for the entire year is divided by the number of days worked, then multiplied by 260, then divided by 52. This is called the 260-multiple method.
- If the claimant worked in the same industry for the prior year, and was a six day worker, the total wage for the entire year is divided by the number of days worked, then multiplied by 300, then divided by 52. This is called the 300-multiple method.
- If the claimant worked in the same industry for the prior year and was a seven day worker, a 332-multiple can be applied, or the general straight division method can be applied.
- If the claimant did not work in the same industry for the prior year, or if a full year of wages is not available for the employee, the employer must produce both his payroll and that of a worker of the same class (“similar worker”) showing a year of wages for that worker. Then, one of the above methods of calculations is used.
- If the claimant is a seasonal or intermittent worker, the claimant’s wages are divided by the number of days worked, multiplied by 200, then divided by 52. This is called the 200-multiple method.
- If the claimant was a part-time worker, his actual wages will be used to calculate his AWW, though Courts have held that the 200-multiple can also be used. The issue with the 200-multiple being used is that it sometimes leads to an AWW that is higher than the claimant’s actual earnings. Therefore, practically, the employer should petition for the actual wages to be used in calculating the AWW.
- If the claimant did not work for substantially the whole year prior to the accident because he was in the military or naval service, a 240-multiple would be applied, meaning their actual wages are divided by the number of days worked, then multiplied by 240, then divided by 52.
Practical tip: some of the calculation methods will result in a higher AWW than others, and a claimant will be adamant about using the one that results in the higher AWW over the most appropriate one. When this happens, the employer should determine which situation applies to the claimant and push for the proper formula to be applied.
