Concurrent Employment – Limiting and Litigating Average Weekly Wage

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Claimants may have more than one job at the time of their work incident. Pursuant to New York Workers’ Compensation Law Section 14(6), the average weekly wage can be increased if the claimant has two or more jobs at the time of the work injury. Therefore, this issue of concurrent employment is raised by a claimant, and not a carrier, because it can mean more indemnity benefits to the claimant. When concurrent employment is raised, the claimant should provide written documentary proof of concurrent employment, including paystubs confirming he/she worked for another employer at the time of the incident and W2s, if available. If documentary proof is not provided when concurrent employment is raised, the law judge, at the carrier’s request, should direct the filing of paystubs and W2s, if available. Depending on the status of litigation and what documentary proof has been submitted, the case could be continued for the claimant’s testimony to address concurrent employment or the carrier could reserve its right to testimony on this issue. If the case is not continued, once the claimant obtains the documentary proof, an RFA-1 is usually filed requesting a hearing on this issue.

A key component to concurrent employment is whether an employee-employer relationship exists between the claimant and more than one employer at the time of the underlying work incident. The standard exercise control test should be applied – do both employers exercise control over the employee? Additionally, for the purposes of concurrent employment in the workers’ compensation setting in New York, it should be determined if the claimant regularly and customarily worked for more than one employer within the same calendar week. If yes, this would suggest concurrent employment. Pollak v. Robert Day, Inc., 38 A.D.2d 991, 992, 329 N.Y.S.2d 429, 430 (3d Dept. 1972).

Although not commonly raised, a claimant may assert that the average weekly wage should be increased due to seasonal employment. Pursuant to Matter of Forsyth v Staten Is. Dev. Disabilities Servs. Office., 95 AD3d 1393 [2012]), a claimant need not be employed within the same calendar week to necessarily be entitled to an increase in the average weekly wage. If a claimant is pushing for an increase in average weekly wage due to seasonal employment that was not within the same calendar week as the underlying work injury, the claimant’s testimony is essential.  There is a high standard to prove a cycle of seasonal employment, which would entitle a claimant to an increase to their average weekly wage, based upon a seasonal employment. Whether this high standard is met can be disproved through testimony.

In Forsyth, the Third Department considered the claimant’s primary employment. He was a year-round weekend lifeguard and, for his secondary employment, had worked as a summer lifeguard for the City of New York. The Third Department also took into consideration that the claimant had worked for his primary employer for 12 years and had worked for the City of New York for longer than 12 years, for the months of May and September since 1978. Seeing as this is a 2012 decision that is presumably over the course of three decades, this is a very high standard for the application of what is “regularly and customarily” in regards to seasonal employment. Additionally, the Third Department also considered that in regards to the secondary employment, the claimant had participated in training, received a promotion during the off-season and had returned to his seasonal lifeguard position after the injury.

Therefore, when dealing with this seasonal employment exception, demand the documentary proof and testimony. Argue that there is an extremely high standard to find that seasonal employment meets the regular and customary test. Also, inquire whether the claimant was even promised a job to return to for the next season. If the claimant was not, this certainly does not satisfy the regular and customary standard. The question of whether an employee is concurrently employed and eligible for an increase in the average weekly wage is a question of fact to be determined by the Board. If a claimant meets these standards, then they would be entitled to an increase in the average weekly wage. However, we should ensure that such a decision is supported by the substantial evidence and, with this unusual exception, testimony is key.