LOIS Prevails in Average Weekly Wage Trial

LOIS Partner Christian Sison and Paralegal Taylor Rodriguez obtained a favorable trial decision in a New York Workers’ Compensation case where a Claimant’s attorney requested an increase in the average weekly wage based on an expectation of future earnings. The Claimant only worked for the employer for five days. The Claimant was requesting a wage increase of over 320% from the employee’s actual earnings. In support of the Claimant’s position, her attorney filed a copy of the employment contract between both parties. The contract purported to project higher earning potential if the employee passed a training program and worked longer than a probationary period. Prior to trial, Sison declined to “compromise” the average weekly wage, given that the Claimant had already received the benefit of a prior wage increase due to a similar worker’s wages. At trial, Sison gained multiple concessions from the Claimant. The Claimant understood that the employment was at-will, indicating that there would be no surprise if “projected” earnings were to immediately cease. She also admitted that she never worked the number of hours per day that were expected by the employment contract. The Law Judge ultimately adopted Sison’s arguments, and the exposure of the indemnity portion of the claim was significantly reduced.