One of the most contentious parts of a claim can be setting the average weekly wage (AWW), as it determines a claimant’s benefit rate for the life of the claim, including entitlement to reduced earnings. Certainly, at times, the method chosen by the Board for setting an AWW can arguably result in an “artificial inflation” of a claimant’s wages. This is particularly true with part-time or sporadic employees, who oftentimes work far less than what one would normally consider to be “part-time” employment.
The method for calculating an employee’s AWW is dictated by Workers’ Compensation Law Section14. WCL §14(1) provides that the average annual earnings of a five-day or six-day worker who worked in the same employment during substantially the whole year immediately before the injury, whether for the same employer or not, are calculated by multiplying the average daily wage by either 260 (five-day employee) or 300 (six-day employee). If the injured worker did not work in the same employment for substantially the whole year before the injury, this calculation is based upon the wages of a similar worker who was so employed. WCL Section14(2). In circumstances where neither section 14(1) nor section 14(2) can be fairly applied, the Board has held that the average annual earnings are based on the claimant’s previous earnings or the earnings of “other employees of the same or most similar class, working in the same or most similar employment … in the same or neighboring locality” during the year before the injury. WCL Secition14(3).
When WCL Section14(3) is used to calculate the AWW, the AWW “shall reasonably represent the annual earning capacity of the injured worker but consist of no less than 200 times the average daily wage, “provided that the worker was ‘fully available’ for employment before the injury.” (Matter of Kellish v Kellish Tire Sales, Inc., 12 A.D.3d 804 (2004)).
With regard to part-time or sporadic/intermittent employees, “the 200 multiple method is properly used to compute the average weekly wage of a part-time or intermittent [claimant] only where there has been a finding that the [claimant] was fully available for the employment at issue, and should not be applied if a claimant has voluntarily limited his or her availability for work.” (Matter of Servidio v. North Shore Univ. Hosp., 299 A.D.2d 685, 687, 749 N.Y.S.2d 587 (2002)).
The question of whether a claimant made him/herself fully available for employment will likely require testimony of the claimant as well as a witness for the employer. Circumstances such as limiting one’s employment due to childcare issues, transportation issues, unrelated illness, or simply a desire to work less hours, would support an argument that use of a 200 multiple is not appropriate. Evidence of a claimant’s intent to work less hours than what is offered, such as payroll records or electronic communications with the employer, can be helpful in bolstering the argument that a claimant voluntarily limited him/herself for employment. In these circumstances, a weekly straight divisor is often applied, resulting in an AWW that is typically a fair representation of a claimant’s actual earnings.
Unfortunately, when there is a lack of clear-cut evidence demonstrating that a claimant voluntarily limited his/her availability for employment, the Board will utilize a 200 multiple. In Matter of David Bain vs. New Caps, LLC, the Third Department upheld the board panel’s decision to utilize a 200 multiple for a sporadic, “as-needed” employee who only worked for the employer for 16 days out of the 52-week period prior to the date of injury. 157 AD3d 1146 (1/18/18). The carrier argued for use of a 52-week divisor, which generated an AWW of $96.53. However, the Third Department held that use of a 200 multiple was appropriate, as no evidence was presented to demonstrate that the claimant voluntarily limited his availability for work with the employer. This finding resulted in the AWW being set at $709.15; a figure more than seven times what a straight divisor yielded.
When push comes to shove, documentary evidence of a claimant limiting their availability to work is the best evidence. Payroll records of employees who are employed in a similar class as a claimant may be useful in showing that a claimant chose not to work as much as he/she could have. Similarly, communications from a claimant, advising of his/her inability to work certain hours, is also beneficial. Finally, testimony from an employer witness with first-hand knowledge of a claimant’s work schedule and availability is key to making a successful argument that a claimant did not make him/herself “fully available” for employment.