THE PUBLIC ASSISTANCE BENEFIT RECEIVED BY CLAIMANT DURING PARTICIPATION IN A WORK EXPERIENCE PROGRAM (WEP) CONSTITUTED WAGES FOR THE PURPOSE OF CALCULATING WORKERS’ COMPENSATION BENEFITS FOR ON THE JOB INJURY (THIRD DEPT).

The Third Department, in a matter of first impression, determined that the public assistance benefit received by claimant when he participated in the work experience program (WEP) constituted wages for the purpose of calculation the workers’ compensation benefit for injury on the job:

Wages are defined as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident” (Workers’ Compensation Law § 2 [9]). A recipient of public assistance may be required to participate in work activities, including work experience in the public sector (see Social Services Law §§ 331, 336 [1] [d]) … . The amount of assistance that a participant in a WEP receives is not determined by the number of hours worked; rather, the number of hours that a recipient of public assistance is required to participate in a WEP is determined by dividing the amount of assistance received by the higher of the federal or state minimum wage (see Social Services Law § 336-c [2] [b]). Significantly, the benefits of a recipient who fails to participate in a required WEP without good cause are subject to reduction or forfeiture (see Social Services Law § 342). The fact that recipients of public assistance must participate in a WEP to receive benefits without reduction means that the public assistance paid to WEP participants directly serves as compensation for the work performed … . Accordingly, we conclude that public assistance benefits paid to WEP participants are wages as defined in the Workers’ Compensation Law. We note that our conclusion is consistent with the Court of Appeals’ observation that that the “rate and method of payment of WEP workers” is determined by the Social Services Law … . Matter of Covert v Niagara County, 2019 NY Slip Op 03870, Third Dept 5-16-19