Determining the claimant’s average weekly wage (AWW) is an important part of any workers’ compensation claim, as the claimant’s average weekly wage dictates the rate of their disability benefit for any causally related lost time. The method by which a claimant’s average weekly wage is determined involves application of the provisions of WCL §14.
If the claimant worked for the employer for at least a year prior to being injured, the wages earned during that period will often simply be divided by 52 weeks in order to determine the AWW. Alternatively, if the claimant normally worked five days per week, but didn’t work for a substantial portion of the year, the average daily wage can be multiplied by 260 to determine the claimant’s annual wage, which is then divided by 52 (or, for a six or seven day per week worker, the average daily wage is multiplied by 300, then divided by 52). In cases where the claimant did not work substantially all of the prior year, e.g. workers who are injured shortly after being hired, the payroll of a similar worker may be used in order to determine the AWW.
However, according to WCL §14(3):
“If…the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual average earnings…shall consist of not less than two hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.”
In practical terms, when is a 200 multiple applied? And what is the alternative? In Reasoner v. New York State Dep’t of Motor Vehicles, 110 A.D.2d 962, 488 N.Y.S.2d 102, 1985 N.Y. App. Div. LEXIS 48854 (N.Y. App. Div. 3d Dep’t 1985), the claimant worked four total days over the course of the year preceding his injury, and the 200 multiple was found to properly apply (which resulted in an AWW almost as large as his actual total earnings for the year) . The claimant worked on a per diem basis, and interestingly, he was only expected to work on a few occasions each year. The distinguishing factor was that the claimant made himself available to attend as often as he was asked – he did not limit his availability voluntarily. However, in Pease v. Anchor Motor Freight, 158 A.D.2d 820, 551 N.Y.S.2d 406, 1990 N.Y. App. Div. LEXIS 1800 (N.Y. App. Div. 3d Dep’t 1990), the claimant was a truck driver who also conducted his own construction business. The Appellate Division affirmed a finding that the claimant “voluntarily limited” his time working as a truck driver, in order to spend more time on his personal business endeavor. This affirmative choice to limit his time working as a truck driver rendered §14(3) inapplicable to the wages earned in that position, and his average weekly wage was computed using actual annual earnings as a truck driver. Thus, an “actual earnings” computation is used when a claimant has “voluntarily limited” his time working for an employer.
There are a multitude of other scenarios in which the specifics facts involved may affect the determination of whether a claimant will be entitled to a 200 multiple or an actual earnings computation. These types of cases include those of seasonal, part-time, and intermittent workers. For example, it has been held that a chef hired for a summer job, who had only worked as a chef during the summer season for the two years before his accident (having dedicated the remainder of those two years to attempting to write a cookbook), “had not voluntarily restricted his employment to Summer work.” Scharch v. Keough, 23 A.D.2d 607, 256 N.Y.S.2d 687, 1965 N.Y. App. Div. LEXIS 4818 (N.Y. App. Div. 3d Dep’t 1965). This was based largely on the fact that in prior years he had worked substantially all of the year, and that he had abandoned the cookbook project at the time when he was injured (meaning, presumably, that it could be inferred that the claimant was planning to return to full time work as he had done in the past). Hence, it is clear that these decisions are fact sensitive and not dependent merely on the employer’s classification of the type of worker.
In point of fact, there are a multitude of additional factors which inform the AWW of any given claim, which are beyond the scope of this article (e.g. When can it be said that a 260 or 300 multiple cannot be “reasonably and fairly…applied”? What is a “similar worker”? When does concurrent employment allow for a computation of a composite AWW consisting of the wages for both jobs?). In every case, the facts must be examined closely in order to determine the proper method of computation of the AWW.
If you have a specific New York workers’ compensation question, feel free to e-mail Tim Kane directly.