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Case # G1035692
Date of Accident: 02/18/2014
District Office: Albany
Employer: Millspaugh Furniture House Inc.
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67064816
Date of Filing of Decision: 08/21/2017
Claimant's Attorney: Ouimette Goldstein & Andrews LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed December 28, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the evidence supports the calculation of the claimant's average weekly wage from concurrent employment.

In a reserved decision filed on July 22, 2016, the Workers' Compensation Law Judge (WCLJ) found that the claimant had concurrent employment and that a 200 multiple should be utilized in computing her concurrent average weekly wage based upon the holding in Matter of Reasoner v NYS Dept. of Motor Vehicles (110 AD2d 962 [1985]). As a result, the WCLJ established the claimant's average weekly wage as $524.57.

The Board Panel majority affirmed the WCLJ decision in its entirety.

The dissenting Board Panel member would return the case to the trial calendar for further development of the record to determine the claimant's earnings from February 18, 2013, to February 18, 2014 (the year preceding the date of accident). The dissenting Board Panel member would also apply the holding in Staten Island DDSO (2011 NY Wrk Comp G0108704) to find that the claimant's concurrent employment average weekly wage should be calculated using straight division because her employment was seasonal.

The carrier filed an application for Mandatory Full Board Review on January 26, 2017, arguing that the dissenting Board Panel member's decision should be adopted as the opinion of the Full Board. Specifically, the carrier argues that straight division should be used to calculate the claimant's concurrent employment average weekly wage, by dividing her earnings for the year immediately preceding the date of accident by 52 weeks.

The claimant did not file a rebuttal.

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

FACTS

This case is established for injuries to the claimant's right arm and right shoulder that occurred on February 18, 2014.

In a C-240 (Employer's Statement of Earnings) dated April 8, 2014, the employer indicated that the claimant was a five day a week worker, that she worked a total of 255 days and earned $560 a week for 51 weeks, and had a $300 bonus paid on December 17, 2013. The employer indicated that the gross earnings were "28,611.21."

The record contains copies of the claimant's W-2 from concurrent employment at H&R Block. The W-2 from 2013 indicates that the claimant's gross earnings were $11,647.83. The W-2 from 2014 indicates that the gross earnings were $6,879.37.

By decision filed April 3, 2015, the WCLJ found that the claimant's average weekly wage was $1,676.45 based on a primary average weekly wage of $566.88 and $1,109.57 concurrent average weekly wage, and awarded the claimant a 48.34% schedule loss of use of the right arm.

In a decision filed March 7, 2016, the Board Panel rescinded the April 3, 2015, decision and returned the case to the trial calendar for further development with the claimant's testimony and a revised calculation of the claimant's average weekly wage and schedule loss of use award.

The claimant testified on April 25, 2016, that she was injured while working for a furniture store and was also working for H&R Block. The claimant worked for H&R Block from January 4, 2014, until her date of injury on February 18, 2014. She worked for H&R Block for the previous eleven years during the tax season from January to April. The claimant usually had training in November and December before the tax season.

At the hearing held on April 25, 2016, the WCLJ directed the parties to submit memoranda of law and continued the case for a reserved decision.

By reserved decision filed July 22, 2016, the WCLJ found that the claimant had concurrent employment as a tax professional for several years prior to the date of accident, that the claimant had total earnings of $4,091.61, and that a 200 multiple should be used in computing the claimant's concurrent average weekly wage based upon the holding in Matter of Reasoner (110 AD2d 962 [1985]). To calculate the average weekly wage, the WCLJ divided the total earnings of $4,091.61 by the 30 days worked, which resulted in $136.39 earnings daily; using the 200 multiple, the average weekly wage was established as $524.57.

The carrier sought administrative review, arguing that the claimant's concurrent employment average weekly wage should be determined by using a straight divisor of 52 weeks as opposed to a 200 multiple because the claimant was a seasonal worker at her concurrent employment. The carrier cited Matter of Staten Island DDSO (2011 NY Wrk Comp G0108704) in support. The carrier therefore asked that the WCLJ decision be modified to find that the concurrent average weekly wage is $189.21, representing the claimant's total concurrent earnings for the 52 weeks preceding the date of accident ($9,838.98) divided by 52 weeks.

In rebuttal, the claimant maintained that the WCLJ properly found the use of a 200 multiple appropriate, which resulted in a concurrent employment average weekly wage of $524.57.

LEGAL ANALYSIS

A claimant's average weekly wage equals 1/52 of his or her "average annual earnings" (WCL § 14[4]). The average annual earnings of a five-day or six-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 average daily wage by either 260 (five-day employee) or 300 (six-day employee) (WCL § 14[1]). However, "[w]hen one of the 'known and recognized incidents' of a claimant's job is the fact that he or she is predictably laid off for several months each year, due to the nature of the particular employment, that factor should be taken into account in determining the claimant's average annual earnings pursuant to Workers' Compensation Law § 14 (Matter of Littler v Fuller Co., 223 NY 369 [1918]). When such an employment circumstance exists, the formula outlined in [WCL] § 14(1), which is based on the approximate number of days worked by a five or six-day employee during an entire year, cannot 'reasonably and fairly be applied' to determine the claimant's earnings . . . Accordingly, [the] average weekly wage must be calculated pursuant to subdivisions (3) and (4) of [WCL] § 14" (Matter of Till v Opportunities, Inc., 252 AD2d 619 [1998]).

Pursuant to subdivisions (3) and (4) of Workers' Compensation Law (WCL) § 14, a claimant's "average annual earnings shall consist of not less than [200] times the average daily wage or salary which he [or she] shall have earned in such employment during the days when so employed," which are then divided by 52 to reach the average weekly wage (WCL § 14[3], [4]; see Matter of Servidio v North Shore Univ. Hosp., 299 AD2d 685 [2002]; Matter of Reasoner v New York Dept. of Motor Vehs., 110 AD2d 962 [1985]). The 200 multiplier set forth in WCL § 14(3) applies only where a part-time employee is fully available for the employment at issue, and will not be applied if a claimant has voluntarily limited his or her work availability (see Matter of Servidio v North Shore Univ. Hosp., supra at 687; Matter of Pease v Anchor Motor Frgt., 158 AD2d 820 [1990], lv dismissed 76 NY2d 772 [1990])" (Matter of Kellish v Kellish Tire Sales, Inc., 12 AD3d 804 [2004]).

WCL § 14(6) further provides that if the injured employee is concurrently engaged in more than one covered employment at the time of injury, the employee's average weekly wage is calculated on the basis of wages earned from all covered concurrent employment. Employment is "covered" when the claimant worked for "an employer who falls within the purview of the Workers' Compensation Law" (Matter of Lashlee v Pepsi-Cola Newburgh Bottling, 301 AD2d 879 [2003]). Employment is "concurrent" when the claimant worked and earned wages in two covered employments at the same time (see Matter of Webb v TAD Temporaries, 274 AD2d 767 [2000], lv denied 95 NY2d 768 [2000]).

In Matter of Reasoner (110 AD2d 962 [1985]), a claimant was employed four days a year as a per diem member of the Department of Motor Vehicles Repair Shop and also operated his own television repair business. The Board established an average weekly wage of $384.62 based upon the 200 multiple by multiplying the claimant's average daily wage of $100 while working for the Department of Motor Vehicles by 200 and dividing by 52. The Appellate Division affirmed the decision based upon the claimant's testimony that the claimant was available to attend as many meetings as required by the employer. The Appellate Division found that there was an ample basis from the entire record to support the Board's calculation of average weekly wage pursuant to WCL § 14(3).

In Staten Island DDSO (2011 NY Wrk Comp G0108704), the Board Panel found that the claimant's concurrent average weekly wage must be determined by annualizing his total seasonal earnings - that is, by dividing the total seasonal earnings by 52. In Matter of Forsyth v Staten Is Dev Disabilities Servc. Off. (95 AD3d 1393 [2012]), the Appellate Division affirmed the Board Panel's finding of concurrent employment but did not expressly address the calculation of the claimant's concurrent average weekly wage.

Here, the record reflects that the claimant worked as a tax preparer for the concurrent employer, H&R Block, for the previous 11 years, from January to April each year with training in the months of November and December. The claimant specifically testified that she worked for H&R Block from January 4, 2014, until her date of injury on February 18, 2014, which totals six weeks (or 30 days) of employment. Nothing in the record indicates that the claimant voluntarily limited her work availability. This situation is therefore akin to a seasonal employee. In this situation, the "average weekly wage must be calculated pursuant to subdivisions (3) and (4) of [WCL] § 14" (Matter of Till, 252 AD2d 619 [1998]). The claimant's concurrent employment average weekly wage should therefore be determined by multiplying the claimant's average daily wage by 200 and dividing that sum by 52 weeks (see WCL § 14[3], [4]).

The claimant's H&R Block earnings for the period between January 4, 2014, and February 18, 2014, which totaled $4,091.61, should be divided by the number of days actually worked during the year preceding the accident (30 days) to calculate the claimant's concurrent employment average daily wage, which equals $136.39. Using the 200 multiple and then dividing that figure by 52 weeks, the claimant's average weekly wage would be $524.57, as found by the WCLJ.

Using the 200 multiplier to determine the claimant's concurrent employment average weekly wage is consistent with the Appellate Division's treatment of wages earned by employees who, like the instant claimant, work less than a full year (see Matter of Till, 252 AD2d 619 [1998]; Matter of Reasoner (110 AD2d 962 [1985]). Inasmuch as the Board in Staten Island DDSO(2011 NY Wrk Comp G0108704) did not assess the claimant's average weekly wage pursuant to the analysis set forth in WCL § 14, and the Appellate Division did not expressly affirm the Board's findings regarding the average weekly wage, the precedent weighs in favor of applying the 200 multiple here.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports computing claimant's concurrent average weekly wage pursuant to WCL § 14(3), using the 200 multiple.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed July 22, 2016, is AFFIRMED. The case is continued.