Seasonal Employees Back to Work – Or Not : Part 2 on Calculating AWW

Welcome to the second installment of our serial blog on the issue of Average Weekly Wages!  When we last left our intrepid hero, he had plummeted to his apparent death in the Reichenbach Falls grappling with his mortal enemy and mastermind criminal, Professor James Moriarty… wait … wrong serial … sorry.

Actually, when we signed off last time we left you with a quiz question to illustrate the finer points of the “multiple method” of AWW calculation with the following fact-pattern:

The C-240 filed indicated that the claimant was a four-day a week hourly worker. Out of the 52 weeks preceding his injury, the claimant work four-days a week for 36 weeks; six-days a week for 8 weeks; five-days a week for 4 weeks; three days a week for 2 weeks; two-days a week for 1 week; and 0 days for 1 week. The gross amount paid to the claimant was $28,782.88. The total number of days worked was 220 days.  There are no other facts relevant to the issue of AWW in the record.

The Board in <u>VIP Health Care Services Inc.</u>, 2015 NY Wrk. Comp. 0810813 held that the worker described above was entitled to an average weekly wage based off of a “224 multiple” after reminding the carrier that “there is no statutory authority supporting the calculation of the claimant’s average weekly wage” using a “divsor.”  In support of its ruling, the Board noted that it agreed with the carrier that the claimant “did not work substantially the whole of the year pereceidng his accident” and that the use of the 224 multiple “reasonably represents the claimant’s annual earning capacity in the year immediately before the injury.”  The keen reader will recognize that the fact-pattern her recounts on 220 days worked in the year preceding the accident and calculating out the figures specifically denoted in the decision still gives us a 220-day work-year.  How the Board Panel got 224 days is beyond comprehension given the limited analysis in the decision except the Board notes that “the carrier, by requesting a $564.37 average weekly wage, has essentially conceded a 224 multiple for the claimant in its application for review.”  Does that mean that the carrier here did its math wrong on the Application for Review?  That’s a mystery that even Mr. Holmes might not be able to solve.

The other mystery left by our first installment was the use of the 300 and 200 multiples.  When we started that post you were told that the 200, 260 and 300 multiples were the three most common methods of calculating an AWW and that drives us right into the heart of our next topic:  part-time-seasonal and sporadic workers, which generally fall under the same case-law driven analysis.

WCL § 14(1) gives us the 260  multiple-method of calculation.  § 14(2) provides the option of a “similar worker” payroll (which we will get to later on in our serials) and § 14(3) is the statutory provision that gives us the starting line for today’s topic.

In the event that neither of the methods provided in WCL § 14(1) and § 14(2) can be reasonably and fairly applied, WCL § 14(3) provides that the annual average earnings shall be such sum as:

<em>having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment…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, [her] average annual earnings shall consist of not less than [200] times the average daily wage or salary which [s]he shall have earned in such employment during the days when so employed…</em>

Section 14(3) is an archetypal legal “catchall” favored by lawmakers that, with broad stokes, closees loopholes and otherwise sets thresholds: ceilings or floors.  Although § 14(3) grants what seems to be broad discretion to set a wage without any reference to the means of calculation provided it “reasonably represent[s]” the workers’ earning capacity, it also sets a floor: <em>in no event shall an AWW work out to less than a 200 multiple.</em>

When part-time, seasonal and sporadic workers are injured, this provision of § 14(3) is most often in play, whether the parties realize it or not.  What you may not realize, however, is that this “floor” is also subject to a massive exception that seems to be under-utilized.  Namely, the Board has held that the 200-multiple minimum can only be employed “where there has been a finding that the employee was ‘fully available’ for the employment at issue.”  <u>Matter of Pease v Anchor Motor Frgt.</u>, 158 AD2d 820 (3d Dept. 1990) <em>lv dismissed</em> 76 NY2d 772 (1990), <em>quoting</em> <u>Matter of Pfeffer v Parkside Caterers</u>, 42 NY2d 59 (3d Dept. 1977).  We’re talking Third-Department case-law here, not the more malleable and far less reliable Board Panel opinions scattered throughout our first installment.

A ready example where a 200 multiple may not apply is an already-retired worker taking on a post-retirement job for a few days a week.  Provided the employer can establish that the claimant’s work-schedule was driven more by the claimant’s request for work hour than the employer’s needs or offer of work, a 200 multiple may not be applied.

What is also very notable is that the law requires an affirmative finding that the claimant was “fully available” for more employment.  Using a 200 multiple, or even a 260 multiple for a part-time worker may be should be reversed by the Board where a finding regarding the worker’s availability is absent from the record.  <em>See </em><u>NEWSDAY, LLC</u>, 2015 NY Wrk Comp 0816290 (189 days worked with only 11 five-day weeks, imposing a 260 multiple is not warranted and case is remanded for additional proofs including testimony on claimant’s availability for work with the employer).

When getting down to the nitty gritty of evidence, testimony from the claimant is of course vital, but so is employer testimony.  Some very recent examples of cases where a claimant was found “not fully available should illustrate this point nicely:

<u>John R. Kearney, M.D., P.C.</u>, 2014 NY Wrk. Comp. 0556851:

Claimant was a <em>per diem</em> employee called in when he was needed by the employer.  The employer witness testified by letter to the Court that the claimant had no set hours or schedule and that “many times the claimant did decline our offer of work” sometimes because it was on too short notice, but sometimes because the claimant didn’t like the particular assignment offered.  Claimant testified that he had never refused work from the employer, but also conceded that his job was “primarily for the purpose of supplementing his Social Security income and that he was not allowed to exceed the $10,000 supplemental income limit although he denied that this limit played any role in his work schedule.  The WCLJ found the claimant did not self-limit but the Board reversed:  <em>“Here, contrary to the statement by the employer, the claimant testified that the he did not refuse work. However, the claimant also indicated that through his employment he “probably wouldn’t have” exceeded the $10,000.00 Social Security threshold. As such, the Board Panel finds that while the claimant may not have refused work, he cannot under these circumstances be characterized as fully available for the employment in question.”</em>

<u>University Of Rochester</u>, 2012 NY Wrk. Comp. 47370:

Claimant’s C-240 showed a “sporadic” work pattern and that the claimant typically worked one or two days per week for 29 of the 52 weeks preceding the accident.  The claimant conceded that ” I generally worked one day a week when I was available and if they needed extra days like if someone . . . was scheduled to work and had an unexpected emergency or sick call, I would work additional shifts to fill in.” The claimant denied self-limiting her hour, but on cross she conceded that when she applied for her job she specifically sough only <em>per diem </em>work but that she specifically was hire to work one day a week and she was generally availbe to work on the other week days and that when she applied for the job she was not interested in part-time or full-time work.  The Board Panel agreed with the WCLJ that the claimant was not fully available for more work and that the 200-multiple minimum did not apply:  <em>“The claimant’s own testimony demonstrates that she had applied for and accepted per diem work. She testified that she was not interested in a full-time or more traditional part-time schedule. As noted above, the C-240 further indicates that the claimant worked sporadically during 29 weeks out of the 52-week period in question. Further, the C-240 reflects that the claimant typically worked one to two days per week during those 29 weeks.</em>”

“Intermittent” employment can also be described as employment under contract for a set-term (college TAs, election workers etc.).  Specifically, workers in an election monitoring position, which generally lasts only a few days or a few weeks do not get the benefit of a 200-multiple and must instead rely on the prevailing statutory minimum.  <em>See </em><u>Matter of Jacob v Town of Glenville</u><em>, </em>43 AD2d 409 (3d Dept. 1974).

Moreover, the proper analysis of whether a claimant is “self-limiting” or “available” for employment is not to be limited to the specific job in question, but instead to the labor market in general. <u>Matter of Kellish v Kellish Tire Sales, Inc.</u>, 12 AD3d 804 (3d Dept. 2004).  As such, an employer need not necessarily have made more hours available to the employee, nor must the employee have refused such an offer.  If the terms of the employment are fairly well defined by the parties, the Board (and Appellate Division) can find that an employee was “not fully available” if they did not take steps to supplement their work for the insured to fill in their empty hours/days.

For example, a claimant hired for a job that will last only a short time cannot claim “full availability” by suggesting that, had the position been of longer duration or more hours they could have worked more.  Instead, the claimant must show that he or she was looking for work outside the hours/days of the employment in question.  <em>See also </em><u>NYC Board of Election</u>, 2015 NY Wrk. Comp. 0519004; <u>Matter of Winter v. Camp Scatico</u>, 7 AD2d 812 (3d Dept. 1958)(Summer camp worker who did 10-weeks over the summer every year for six straight years not entitled to 200 multiple where he testified that he no other work because “I’m too old.).

In at least one recent case, the Board held that where the employer established that a claimant, an otherwise full-time worker, habitually took off summers to go travel outside the country, the claimant was self-limiting her employment and could not avail herself of a 200-multiple calculation because “the claimant would reap the benefit of a higher average weekly wage . . . during a time period when she typically removes herself from employment and has no wages to loss” <u>The Unity Hospital</u>, 2015 NY Wrk. Comp. 0674976.

Finally, we will talk about teachers and the 10-month work-year that I personally covet (just ask my wife!).  Working 10 months of the year, and considering holidays, most teachers generate a C-240 hovering right around, but usually below, 200 days worked in the preceding work-year.  Moreover, every year they work, they are off for roughly two months.

When 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 .  <u>Matter of Littler v Fuller Co.</u>, 223 NY 369 (1918).  When such an employment circumstance exists, the formula outlined in Workers’ Compensation Law § 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 Workers’ Compensation Law 14.” <u>Matter of Till v Opportunities, Inc.</u>, 252 AD2d 619 (3d Dept. 1998).

Availability is usually not at issue in this matters because a 200 multiple or an actual multiple are generally very close, and, of course, <u>Till</u> appears to have created a case-law driven exception for teachers. Chosing a 200-multiple as against a “actual multiple” (the sly way the Board imposes divisors while still chiding us lawyers for calling it a divisor) will depend upon the number of days worked and whether the result is favorable to the claimant.  A seasonal payroll showing more than 200 days worked gets a “divisor” and less than 200 days gets the threshold multiple.  <u>Matter of Atlantic Express Escorts</u>, 2009 NY Wrk Comp 649820; <u>Floral Park-Bellerose Union</u>, 2015 NY Wrk. Comp. 1071162.

We will end on a point that many of you might be thinking about in the context of a teacher or other seasonal employee:  can the collect comp for the months/times of year where they would otherwise have been unemployed?  Can we suspend during the “off months?”

The short answer is, mostly probably not:

Where an employment is seasonal, a carrier cannot suspend compensation benefits during the summer months when the claimant would not usually be receiving wages because the averaging provisions that determine AWW spread seasonal wages over an entire year.  Having properly calculated the claimant’s average weekly wage under the statutory formula provided by <a href="https://thelomad.com/getmad.today/wp-contentwww.lexis.com/research/buttonTFLink?_m=4a71373fc4286b3769bffee9b62c30db&amp;_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2015%20NY%20Wrk.%20Comp.%20LEXIS%205965%5d%5d%3e%3c%2fcite%3e&amp;_butType=4&amp;_butStat=0&amp;_butNum=7&amp;_butInline=1&amp;_butinfo=NY%20WORK%20COMP%2014&amp;_fmtstr=FULL&amp;docnum=3&amp;_startdoc=1&amp;wchp=dGLzVzB-zSkAb&amp;_md5=7d957a56f4603e2ea6acfc6d96284951" target="_blank" rel="noopener">WCL § 14(3)</a> and <a href="https://thelomad.com/getmad.today/wp-contentwww.lexis.com/research/buttonTFLink?_m=4a71373fc4286b3769bffee9b62c30db&amp;_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2015%20NY%20Wrk.%20Comp.%20LEXIS%205965%5d%5d%3e%3c%2fcite%3e&amp;_butType=4&amp;_butStat=0&amp;_butNum=8&amp;_butInline=1&amp;_butinfo=NY%20WORK%20COMP%2014&amp;_fmtstr=FULL&amp;docnum=3&amp;_startdoc=1&amp;wchp=dGLzVzB-zSkAb&amp;_md5=75bec0b2ce1d16a3c6da61614f25c57b" target="_blank" rel="noopener">WCL § 14(4)</a> for calculating an employee’s average weekly wage, seasonal periods of unemployment, such as are customarily experienced by school teachers and other school district employees, are fully accounted for by using a 200 multiple, instead of the 260 multiple or 300 multiple provided by <a href="https://thelomad.com/getmad.today/wp-contentwww.lexis.com/research/buttonTFLink?_m=4a71373fc4286b3769bffee9b62c30db&amp;_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2015%20NY%20Wrk.%20Comp.%20LEXIS%205965%5d%5d%3e%3c%2fcite%3e&amp;_butType=4&amp;_butStat=0&amp;_butNum=9&amp;_butInline=1&amp;_butinfo=NY%20WORK%20COMP%2014&amp;_fmtstr=FULL&amp;docnum=3&amp;_startdoc=1&amp;wchp=dGLzVzB-zSkAb&amp;_md5=26730495bb8eb27dee66bf357766c397" target="_blank" rel="noopener">WCL § 14(1)</a> for full time, year round five or six day workers. If the employee was denied compensation benefits during the summer months, the fact that a claimant was not regularly employed during that time period would be accounted for twice; once in the calculation of average weekly wage, and then again in determining the compensable periods of disability. Thus, even if the claimant did not work during the summer months immediately preceding the injury of this file, the claimant would be entitled to compensation benefits during the summer months.

<u>Mt. Vernon Central School</u>, 2015 NY Wrk. Comp. 0774783; <u>Marlboro CSD</u>, 2015 NY Wrk. Comp. 0977561; <u>Floral Park-Bellerose Union</u>, 2015 NY Wrk. Comp. 1071162.