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METHODS FOR DETERMINING WEEKLY WORKERS’ COMPENSATION BENEFITS FOR SHORT-TERM EMPLOYMENT EXPLAINED, MATTER REMITTED FOR THE GATHERING OF EVIDENCE AND RE-CALCULATION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the benefits to be provided to the injured worker, based upon only 78 days of employment may have been wrongly calculated and remitted the matter:

Following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) established claimant’s average weekly wage as $933.14, which was arrived at by dividing his total earnings ($12,130.76) by the number of weeks worked (13). The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) sought administrative review. Upon that review, the Workers’ Compensation Board determined that claimant’s average weekly wage should have been calculated pursuant to Workers’ Compensation Law § 14 (3), using a 200 multiplier, and that, so calculated, claimant’s average weekly wage was $598.15. * * *

Under Workers’ Compensation Law § 14 (2), the average annual earnings of a six-day worker is 300 “times the average daily wage or salary . . . which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.” The carrier did not submit payroll records for similar employees or otherwise assert that such records were unavailable … . In the absence of such information, we cannot determine whether the Board properly rejected the method set forth in Workers’ Compensation Law § 14 (2) before resorting to Workers’ Compensation Law § 14 (3) to calculate claimant’s average weekly wage. Matter of Molina v Icon Parking LLC, 2019 NY Slip Op 07467, Third Dept 10-17-19

 

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