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New York: Calculating Wages for Concurrent Employment – Post reform.

The Appellate Division issued a decision last week in a case where a post-2007 claimant had average weekly wages of $3.56 per week in the primary employment (the employment where she sustained the injury). The claimant had another job – a part time position at a retail clothing store, where she earned an average weekly wage of $77.13.

Added together, the Board found a wage of $80.69 per week. The Law Judge issued awards at a temporary total rate of $80.69 per week. The employer appealed – arguing that the award should have been based on the primary wage only – $3.56 per week – because reimbursement for compensation paid for additional amount attributable to the concurrent employment are no longer reimbursable from the Special Disability Fund (as per Section 14(6) of the WCL).

In this case the Appellate Panel ruled in favor of the claimant, finding that there was concurrent employment pursuant to Workers' Compensation Law § 14 (6) and that claimant's benefits were properly calculated based upon both employments. Despite the weekly wage in the primary employment being nly $3.56 per week, the claimant got the benefit of a much higher rate based on both employments.

Case: Hazel Hope v. Warren County Board of Elections, 512524 (App. Div. Decided Nov. 23, 2011).

Have a question about calculating wages or rates in a case where there is concurrent employment? Contact Greg Lois.

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