Waging the War of Wages: Board Revises Employer’s Statement of Wage Earnings (Form C-240)
On June 19, 2017, the Office of the Chair of the Workers’ Compensation Board in New York issued an official Revision of Employer’s Statement of Wage Earnings — at parties, it simply goes by the Form C-240. For the most part, the Form C-240 has stayed true to its roots: it is still required where an injured worker may be entitled to compensation or death benefits, it still demonstrates the claimant’s wage earnings for the 52 weeks prior to the date of injury, and it still is used to calculate the claimant’s average weekly wage and benefit rate. Beyond that, however, is where things get exhilarating.
As now specified next to the online Form C-240 and again in the Subject Number, this Form C-240 now must be filed within 10 days of the Board’s request. Previously, a Law Judge may have directed production of the Form C-240 within a specified amount of days — now, the best course of action will be to file the C-240 upon receipt of the Notice of Decision directing production to ensure compliance with this 10 day deadline.
Similar Worker Payroll
Under Workers’ Compensation Law Section 14(2), if the claimant did not work a “substantial part” of the year, the employer must also provide the wage earnings of another worker of the same class who worked a “substantial part” of the year. In cases where this is necessary, a new Employer of the Same Class table has been added to the Form C-240 for inclusion of this similar worker’s payroll.
Obviously, the term “substantial” is gloriously vague in this setting, but the ever-adapting Form C-240 has accounted for this . . . sort of. The Form C-240 indicates that 234 days worked for a five-day worker and 270 days worked for a six-day worker may be used to determine whether this “substantial part” threshold has been met. However, in an effort to keep a bit of mystery alive, the Subject Number provides that the Board still may find that an injured worker worked a “substantial part” of the year even if the injured worker did not work 234 or 270 days under Matter of The Meadows at Westfall, Inc., 2013 NY Work Comp G0992183.
As such, while some scenarios will be painstakingly clear as to whether this threshold has been met, it will likely take some time — not to mention some heated arguments — to truly determine what will satisfy this “substantial part” test.
One additional note: if payroll documents are being submitted in lieu of completing these payroll tables, these tables on page 2 of the Form C-240 should not be included in the submission.
Heating Up the Boilerplate
Other than the changes discussed above, there have been a plethora of changes made to the layout of the Form C-240 itself, including:
- Question 1: Added a check box indicating whether the payroll information is being completed in the given tables or in attached documentation
- Question 4 (formerly Question 8): Added the opportunity for explanation if the claimant is not a five, six, or seven day per week worker
- Question 5: Asks for the claimant’s total days paid in the preceding 52 weeks
- Question 6: Asks for the claimant’s total gross pay, including overtime, in the preceding 52 weeks
- Question 7 (formerly Question 12, now combined with former Question 9): Asks for wage adjustments, including military service in the preceding 52 weeks
- Question 8: Asks if the claimant was laid off in the preceding 52 weeks
- Injured Worker Payroll Table: Now specifies to include any paid time off
- New Worker of Same Class Payroll Table: Now asks for the payroll information of a worker of the same class as the claimant, if needed as discussed above
- A barcode has bene added to the bottom of the form for the Board’s scanning usage
- New instructions for completing the Form C-240
Thus, make sure you are taking extra caution in completing all eight questions on this new Form C-240 and filing it within 10 days of being directed to do so — nothing is more frustrating than potentially losing an argument or facing a fine over a technicality.