Calculating Average Weekly Wage for Seasonal Employees in New York

We all are aware of the significance in setting a claimant’s average weekly wage.  It has both a current effect and future effect.  The average weekly wage results in current exposure when a Law Judge awards temporary disability benefits for causally-related lost time.  It also forms the foundation of future exposure when parties litigate permanency or analyze the claim for settlement purposes.

Most often, the calculation of average weekly wage is simple mathematics:  gross wages divided by fifty-two (52) weeks.  Also common is the employee who did not work for a full calendar year prior to the accident, which entitles him or her to seek the average weekly wage of a similar worker.  Seasonal employees present a different scenario for the calculation of average weekly wage, and based on a recent Board Panel Decision, all parties still require some clarity on the issue. 

In Matter of Wappingers Central School Dist, the Law Judge set the average weekly wage by dividing gross wages by the forty-two (42) weeks worked.  The employer and carrier appealed, arguing that a fifty-two (52) week divisor should have been used, because the claimant’s salary rate was set by contract.  The Board Panel Decision, issued on February 14, 2017, ruled that “where an employment is seasonal, … the averaging provisions that determine average weekly wage … spread seasonal wages over an entire year.”  It referenced a prior case, to specifically order that “the average weekly wage for claimants with seasonal periods of unemployment (such as are customarily experienced by school teachers and other school district employees) are to be calculated … by using the number of days the claimant actually works, where the claimant has worked more than 200 days.”  The Board Panel used a 210-day divisor to modify the Law Judge’s finding.  2017 Wrk. Comp. LEXIS 1547, G120 1559, W204002.

An interesting fact in this case was the presence of a First Report of Injury, which disclosed a weekly wage that was even higher than the average weekly wage set by the Law Judge!  I have seen plenty of disclosures on electronic reporting that will be held as a concession by the employer and carrier.  Although those “concessions” should be set without prejudice, it is very important to disclose to all parties when your employee is seasonal.  Reducing the average weekly wage by calculating the daily rate can reduce current and future exposure!

Christian Sison is an associate attorney at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. He can be reached directly at csison@lois-llc.com or 201-880-7213.