A New York appellate court decided that the Workers’ Compensation Law Judge erred when they determined a worker’s average weekly wage. The WCLJ had taken a worker’s wages, having worked six days a week for 13 weeks, and divided the total by 13 which was not the appropriate way to figure out his wages, according to the court.

Ramon Guerra Molina worked for Icon Parking as a parking lot attendant six days a week from February 13, 2017 to May 14, 2017 when he was injured after being struck by an elevator door. He filed for workers’ compensation benefits which were accepted. A WCLJ established his average weekly wage as $933.14, by taking his total earnings ($12,130.76) and dividing it by the 13 weeks he worked. His employer sought review with the Workers’ Compensation Board, saying the AWW should have been calculated by New York’s method of using a 200 multiplier which would have made his AWW $598.15.

Typically, New York would determine average weekly wage by dividing average annual earnings by 52. However, this method would only apply when the employee had worked “substantially the whole of the year immediately preceding” their injury. For employees who have not worked “during substantially the whole of the year” their average weekly wage of a six-day worker is calculated by taking the average daily wage and multiplying it by 300. In this case it seems like neither method was reasonably or fairly applied so there is a third alternative in NY in which a 200 multiplier is used in conjunction with their average daily wage.

The appellate court agreed with the Board’s decision that the first method of dividing earnings by 52 was inapplicable since he only worked 13 weeks. They said the Board did not give a reason as to why the second method could not be reasonably applied that they had to resort to the third alternative method. They reversed their decision and remanded the decision back to the Board to evaluate the method used to determine his average weekly wage. They added that the Board should review payroll records of similar employees if available to see whether the second method could be fairly applied and if they determine it can not be, they could apply the third alternative using the 200 multiplier.

Read more about the case here and here.