NY Court Weighs in on AWW Computation for Claimant Working Substantially Less Than Full Year Before Injury

Where a claimant worked six days a week from February 13, 2017 until May 14, 2017, when he sustained work-related injuries, earning $12,130.76 for the thirteen-week period, it was error for the WCLJ to arrive at the claimant’s average weekly wage by simply dividing the wages earned by 13, held a New York appellate court in Matter of Molina v. Icon Parking LLC, 2019 N.Y. App. Div. LEXIS 7497 (3d Dept. Oct. 17, 2019). On the other hand, the Board could not utilize the “200 multiplier” found in N.Y. Workers’ Comp. Law § 14(3) where it gave no explanation as to why N.Y. Workers’ Comp. Law § 14(2) could not “reasonably and fairly be applied.” Accordingly, the Board’s decision was reversed and remanded.

Alternative Methods of Computing AWW in New York

As with the majority of other states, New York ordinarily computes an injured worker’s average weekly wage by dividing his or her average annual earnings by 52 [see N.Y. Workers’ Comp. Law § 14(1)]. § 14(a) applies, however, only where the injured employee has worked “substantially the whole of the year immediately preceding” the injury.

N.Y. Workers’ Comp. Law § 14(2) sets forth the calculation method for employees who did not work “in such employment during substantially the whole of such year.” Under § 14(2), the average annual earnings of a six-day worker is 300 “times the average daily wage or salary.”

Where neither § 14(1) nor § 14(2) cannot “reasonably and fairly be applied,” there is a third alternative: N.Y. Workers’ Comp. Law § 14(3), under which a “200 multiplier” is used in conjunction with the worker’s average daily wage.

Board Was Correct, in Part, But Incorrect as Well

The appellate court agreed with the Board that § 14(1) could not be used, given the relative short duration of the injured employee’s work (78 days. The court observed, however, that the Board jumped to § 14(3) without an explanation of why § 14(2) could not be used. In the absence of such information, the court could not determine whether the Board properly rejected the method set forth in N.Y. Workers’ Comp. Law § 14(2) before resorting to § 14(3) to calculate claimant’s AWW. The case was remanded for such an examination and explanation.