The War on Wages

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A common issue in the workers’ compensation world is properly setting the claimant’s average weekly wage (AWW). Of course, claimant’s counsel will always look for a way to establish the highest AWW possible. It is important to know the how to properly set the AWW, even in unique situations, because adding even a few dollars to the AWW can greatly affect the value of a claim.

The AWW of an injured employee at the time of the injury should be used as the basis for calculating compensation benefits. WCL §14. Section 14 (1) provides the basis for calculating the injured employees wage where the employee has worked in the same or similar employment during the year prior to the injury. Section 14(2) states the employee’s average daily wage multiplied by 260 shall be the basis for calculating a five day/week employee’s wage where the employee has not worked in the same employment during the year preceding the injury. If an injured employee has worked in multiple employments in the year preceding the accident, only the employment the claimant was engaged in at the time of the accident should be considered in establishing the AWW. Employer: Dolomite Grp., 7970 8028, 2000 WL 33322713 (N.Y. Work. Comp. Bd. Mar. 1, 2000).

A “war on wages” arises in the situation where claimant’s employment changed from a higher paying position to a lower paying job position during the year prior to the date of accident. This is because carriers argue that only the wages from claimant’s employment in the job position at the time of the accident should be used in establishing his AWW. Claimant’s counsel may argue that wages from both employment positions should be used in calculating the AWW to try to increase the calculation. Pursuant to WCL Section 14, the winner of this war on wages will be based on the very specific facts of the case.

In Puschett, the claimant had been employed as a salesperson before taking a job as an attendant at an amusement park making less income. The claimant was then injured in his amusement park employment but attempted to have his prior higher wages considered from his prior employment. The court affirmed the Board’s determination to base the claimant’s AWW solely on the attendant salary, which was lower. Puschett v. Playland Park, 268 A.D. 946, 51 N.Y.S.2d 419 (App. Div. 1944).

In the Matter of Dolomite Group, the claimant was working as a landscaper for a country club when he injured his back on May 27, 1997. 7970 8028, 2000 WL 33322713 (N.Y. Work. Comp. Bd. Mar. 1, 2000). The claimant had worked as a salesperson for the same parent corporation that owned the country club until April of 1997. His duties as a landscaper were different than those of the salesperson and the claimant was aware he would suffer a decrease in salary as a result of the change in positions. After his AWW was set using both his wages as a salesperson and as a landscaper, the carrier appealed. The carrier argued that only the employee’s wages as a landscaper should have been used to calculate the AWW as that was the type of employment the employee was engaged in at the time of injury. The claimant’s attorney argued that since both positions were for the same parent corporation, the claimant’s earnings from both employments in the year preceding the date of injury should be used. The Board Panel found in favor of the carrier and reversed the WCLJ decision which used wages from both employments in calculating the AWW. The Board Panel held it was not controlling that both employments were for different businesses under the same parent corporation. In forming this conclusion, the Board Panel cited Puschett and Phillips v. New York Trap Rock Co. Therefore, even if claimant was working for the same employer but in different positions, the carrier can maintain that claimant’s job position at the time of injury controls.

It is important to do a very fact-specific analysis if you see any unusual employment patters prior to the claimant’s injury. A quick review of any change in positions, and the claimant’s hire date, can end up saving a few dollars in the AWW — and countless dollars in the life of the claim.

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