When handling a claim, one of the most important initial steps is determining average weekly wage (“AWW”) since this sets the stage for all awards in established claims. This can sometimes be tricky, especially where injured workers do not fall into the traditional “five-day a week” mold. A few tips and tricks follow.
- In New York, the first thing to remember is that getting an accurate C-240 from the employer is the best way to accurately assess AWW from the outset and avoiding over- or under-payments. Whenever possible, the employer should fill out all boxes on the form C-240, including the “week ending date,” number of days worked/paid that particular week, and “gross amount paid including overtime.” Leaving columns blank or condensing these into 26-biweekly periods can cause substantial confusion and lead to an incorrect wage assessment or result that may need to be modified later in the claim. If a claimant worked substantially less than the 52 weeks prior to the injury, the “Employee of the Same Class” or similar worker payroll should also be completed.
- Second, the Board will generally attempt to use a multiple analysis. If claimant has worked more than 234 days in the year prior to the injury, the Board will generally apply a 260 multiple, meaning that the actual gross wages will be divided by the actual numbers of days worked, then multiplied by 260, then divided by 52. If the claimant has worked more than 270 days, the Board will attempt to do a similar analysis, substituting a 300 multiple for the 260.
- Third, the most common grey area comes in where claimants work part time, often 2-4 days per week, or substantially less than 40 hours. In this case, legal battles can ensue over whether claimant should be entitled to a 200 multiple or whether the “straight line divisor” (dividing the actual gross wages by the actual number of weeks worked) is appropriate. Depending on how the math works out, the number from the 200 multiple calculation may artificially deflate or inflate wages, leading to either litigation or negotiation as needed and there are legal arguments as to which situation may be more appropriate.
Average weekly wage, while seemingly simple, is a crucial first step to be addressed in claims and minor errors can have significant outcomes on economic exposure. If you have any questions or concerns before paying awards, contact your attorney to address it as early as you can in the claim.
