Case # G0290309
Date of Accident: 09/14/2009
District Office: Peekskill
Employer: Warburg Home of the
Carrier: NYAHSA Services Inc
Carrier ID No.: W537757
Carrier Case No.: NYA40348
Date of Filing of Decision: 03/29/2012
Claimant's Attorney: Rella & Associates, PC
Panel: Robert E. Beloten

The Full Board, at its meeting held on February 28, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 8, 2011.

ISSUE

The issue presented for Full Board Review is whether the claimant's average weekly wage (AWW) should be calculated using a 260 multiplier pursuant to Workers' Compensation Law (WCL) § 14(1).

The Workers' Compensation Law Judge (WCLJ) set the claimant's AWW at $738.39 using a 260 multiplier.

The Board Panel majority agreed with the WCLJ's use of a 260 multiplier pursuant to WCL § 14(1), but modified the AWW to $724.45.

The dissenting Board Panel member found that the AWW should be set at $677.50.

On March 4, 2011, the carrier filed a request for Full Board Review. The claimant filed a rebuttal on March 14, 2011.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

On September 21, 2009, the employer submitted a Form C-2 (Employer's Report of Work-Related Accident/Occupational Disease), indicating that the claimant was injured when he slipped and fell on September 14, 2009. The C-2 indicated that the claimant's gross pay in an average week was $606.89.

On August 9, 2010, the employer submitted a Form C-240 (Employer's Statement of Wage Earnings) indicating that the claimant worked five days per week and earned total wages of $30,716.88 during the 52 weeks prior to his accident. During the majority of the weeks during that period (31 out of 52) claimant worked five days. However, the C-240 reflects that during 21 of the 52 weeks, claimant worked less than five days, and that claimant worked a total of 208 days during that period. However, as noted by the Board Panel in its decision filed February 8, 2011, "when checked for accuracy, computation of the payroll evidence actually reflects that the claimant worked for 212 days during this 52-week period." Regardless of the number of days that claimant worked in any given week, the wages he was paid remained relatively consistent.

During an August 9, 2010, hearing, the WCLJ established the claim for work-related injuries to the claimant's head, back, left elbow and right hip. The claimant's AWW was fixed at $738.39 using a 260 multiple. Awards were made for the period from September 15, 2009, to October 18, 2009, at a $492.26 weekly rate, eight days intermittent lost time, reimburse employer; for the period from October 18, 2009, to June 22, 2010, no compensable lost time; for the period from June 22, 2010, to August 10, 2010, at the $492.26 temporary total disability rate; and the carrier was directed to continue payments at the $492.26 temporary total disability rate. Symptomatic treatment and physical therapy were authorized and the case was closed, with the claimant's attorney awarded a fee in the amount of $175.00. The WCLJ's findings were memorialized in a decision filed on August 12, 2010.

The carrier submitted a timely application for administrative review contesting the average weekly wage.

During an October 18, 2010, hearing, the WCLJ made awards for the period from August 10, 2010, to October 19, 2010, at the $492.26 temporary total disability rate (less one day worked), with a direction that the carrier continue payments at a $307.00 tentative weekly, and, claimant's attorney was awarded a fee in the amount of $85.00. The WCLJ's findings were memorialized in a decision filed on October 21, 2010.

The carrier submitted a timely application for administrative review restating its contention that the claimant's AWW was incorrect.

By a decision filed March 4, 2011, the WCLJ made awards were made for the period from October 19, 2010, to January 17, 2011, at the moderate partial rate of $241.48 per week.

LEGAL ANALYSIS

The AWW equals 1/52 of the worker's "average annual earnings" (WCL § 14[4]). The average annual earnings of a five-day worker who worked in the same employment during substantially the whole of the year immediately before the injury, whether for the same employer or not, are calculated by multiplying the worker's "average daily wage" by 260 (WCL § 14[1]).

WCL § 14 does not define the term "average daily wage." The Board Panel majority calculated claimant's average daily wage by dividing his earnings during the 52 weeks prior to his accident ($30,716.88) by the number of days claimant actually worked during that period (212). They then multiplied the average daily wage ($144.89) by 260, and divided the result ($37,617.14) by 52 to obtain an average weekly wage of $724.45. However, $724.45 is considerably higher than claimant's wages during the 52 weeks prior to his accident and does not reasonably represent his earnings at the time he was injured.

WCL § 14(3) provides that when section 14(1) nor section 14(2) "cannot reasonably and fairly be applied, such annual average earnings shall be such sum as, having regard to the previous earnings of the injured employee…, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident, provided, however, his average annual earnings shall consist of not less than two hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed …".

In the present case, claimant worked for the entire 52 weeks prior to his week and was a five day worker. However, because the claimant actually worked only 212 days during that period, calculating his average daily wage by dividing his total earnings for that period by 212, and multiplying the result by 260, results in an AWW which does not reasonably reflect his earnings at the time of the accident.

However, by using a multiplier of 212, the actual number of days claimant worked during the 52 weeks prior to his accident, an average weekly of $590.71 is derived, which reasonably and accurately reflects his earnings at the time he was injured pursuant to WCL § 14(3) (see Matter of Whittaker v Central Sq. Cent. School Dist., 87 AD3d 1249 [2012]).

CONCLUSION

ACCORDINGLY, the WCLJ decisions filed on August 12, 2010, October 21, 2010, and March 4, 2011, are MODIFIED to find that claimant's AWW is $590.71; based on the modification of the AWW, awards previously made at the rate of $492.26 per week are payable at $393.81 per week, and awards previously made at the rate of $241.48 per week are payable at the rate of $196.90 per week. The case is continued.