The Full Board, at its meeting held on November 15, 2011, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 18, 2011.
The issue presented for Full Board Review is the proper average weekly wage (AWW).
During a March 30, 2010, hearing, the Workers' Compensation Law Judge (WCLJ) set the claimant's AWW as $523.86 based on an agreement by the parties, and made awards at the weekly rate of $351.24. However, the corresponding decision filed on April 2, 2010, indicated that the AWW was set at $526.86.
In a Memorandum of Decision filed on March 18, 2011, the majority found that based on the corrected Form C-240, the AWW should be set as $558.21, in accordance with WCL § 14(1), and the temporary total disability rate should be $372.14.
The dissenting Board Panel member would have found that the AWW set by the majority is in excess of the wages the claimant was actually paid in any week during the year prior to the accident. The dissent further found that as the SIE's application for review merely asked that the NOD be amended to conform to the WCLJ's actual findings made during the March 30, 2010, hearing, and since the claimant did not object during the hearing or request administrative review requesting the AWW be increased, the majority inappropriately increased the AWW to conform with WCL § 14(1). The dissent would modify the WCLJ's April 2, 2010, decision to reflect an AWW of $523.86, and a temporary total disability rate of $349.26.
In its application for Full Board Review, filed with the Board on April 15, 2011, the SIE asserts that the Board Panel improperly modified the claimant's AWW to $558.21. The SIE asserts that based on the reasons set out in the dissent, the claimant's AWW should be set as $523.86. The claimant did not file a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The case is established for work-related injuries to the claimant's left knee and left shoulder, resulting from an accident that occurred on June 16, 2009.
On June 25, 2009, the employer submitted a Form C-2 (Employer's Report of Work-Related Accident/Occupational Disease), indicating that the claimant, a teacher, was injured when she tripped and fell while playing a soccer game with her students. The employer indicated that the claimant's gross pay in an average week was $525.00.
On July 6, 2009, the employer submitted a Form C-240 indicating that the claimant was predominantly a five day worker, and had gross wages of $27,240.35 for 174 days worked for the period from June 28, 2008, through June 20, 2009.
On July 6, 2009, the claimant filed a Form C-3, Employee's Claim for Compensation, alleging that she was injured when she tripped and fell on grass while playing a game with her students.
By Proposed Decision filed on February 19, 2010, the claimant's AWW was determined to be $602.13 per payroll using a 200 multiple and various awards were issued.
In response, the SIE submitted a correspondence on February 24, 2010, objecting to the Proposed Decision, based on the claimant's AWW being set too high. The SIE explained that the claimant was a salaried employee and was paid her wages for a full 52 weeks so that a part time 200 multiple should not have been used to determine her AWW. The SIE conceded that using a 52 week divisor to arrive at an AWW of $523.86 was more reflective of the claimant's actual AWW. The SIE also indicated that using a 260 multiple would result in an AWW of $558.20.
A Form C-240 was submitted with the February 24, 2010, correspondence, which amended the prior Form C-240 to indicate the claimant had worked 244 days during the 52 weeks prior to the date of accident, and not 174 as previously indicated.
By Notice of Action on Proposed Decision filed on March 5, 2010, the February 19, 2010, Proposed Decision was withdrawn.
During a March 30, 2010, hearing, the WCLJ established the case for work-related injuries to the claimant's left shoulder and left knee, set the claimant's AWW as $523.86, based on an agreement of the parties, and made awards for the period from June 17, 2009, to June 29, 2009, at the $351.24 temporary total disability rate, reimburse employer; for the period from June 29, 2009, to August 17, 2009, at the $351.24 temporary total disability rate; for the period from August 17, 2009, to August 24, 2009, no medical evidence, and from August 24, 2009, to November 26, 2009, at the $351.24 temporary total disability rate. The corresponding Notice of Decision filed on April 2, 2010, indicated the AWW was set at $526.86.
The SIE submitted an application for administrative review contending that although during the March 3, 2010, hearing the WCLJ set the AWW at $523.86 based on a 52 week divisor, as agreed to by the claimant and the SIE, the corresponding NOD filed on April 2, 2010, incorrectly indicated the AWW was $526.86. The SIE asserted that the proper AWW is $523.86, and the temporary total disability rate is $349.26. The SIE requested that the decision be amended to reflect these rates. The claimant, who is represented by counsel, did not file a rebuttal.
Given that during the March 30, 2010, hearing, the WCLJ set the claimant's AWW as $523.86, based on an agreement between the claimant and the SIE, the claimant did not object to setting the AWW as $523.86, the claimant did not file an application for administrative review requesting the AWW be increased, the SIE (not the claimant) filed an application for administrative review merely requesting that the April 2, 2010, NOD, be modified to conform to the WCLJ's actual findings, and the claimant has not filed a rebuttal, the Full Board finds that the April 2, 2010, NOD should be amended to modify the AWW to $523.86, as set by the WCLJ and agreed to by the parties, and awards be made at the $349.24 temporary total disability rate (see e.g. Matter of The Miracle Makers Inc. Network, 2009 NY Wrk. Comp. 46997).
Moreover, the Full Board finds that the AWW of $523.86 stipulated to by the parties was correctly computed pursuant to WCL § 14(1). The second C-240 states that claimant earned an annual salary, and each week shows the identical amount paid, regardless of whether the days worked. It is therefore fair to construe the C-240 as showing that claimant was employed for five days - regardless of the actual days worked - for each week of the year. WCL § 14(1) does not require that the calculation be made based on the actual days worked, but based on the average daily wage earned "during the days when so employed." Since claimant was "so employed" for all five of the days of a week in which she actually worked only 2, 3 or 4 days, the statute reasonably requires that the AWW be computed by dividing the annual salary by 260 (the days "so employed"), rather than the 244 days recorded by the employer (days worked), resulting in an average weekly wage of $523.86.
ACCORDINGLY, the WCLJ decision filed on April 2, 2010, is MODIFIED to reflect an AWW of $523.86, and a temporary total disability rate of $349.26, with awards to be paid at this rate. No further action is planned at this time.