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Calculating the Average Weekly Wage of Seasonal Workers

One of the more contentious arguments held at workers' compensation hearings involves the calculation and establishment of a claimant's average weekly wage (AWW). Establishing a high AWW will result in increased weekly indemnity benefits. On the other hand, setting the AWW at a lower rate will decrease indemnity exposure. What is clear is that a claimant's AWW is governed by Section 14 of the N.Y. Workers' Compensation Law. However, what is not always clear is how to properly calculate the AWW of a seasonal worker.

One of the more contentious arguments held at workers' compensation hearings involves the calculation and establishment of a claimant's average weekly wage (AWW). Establishing a high AWW will result in increased weekly indemnity benefits. On the other hand, setting the AWW at a lower rate will decrease indemnity exposure. What is clear is that a claimant's AWW is governed by Section 14 of the N.Y. Workers' Compensation Law. However, what is not always clear is how to properly calculate the AWW of a seasonal worker.

A seasonal worker usually means an individual who performs labor or services throughout a certain part of the year and is predictably laid off during the other part of the year. For example, a school teacher typically works from September through June and is predictably laid off during the summer months. Another example may involve a landscaper who typically works during the spring, summer, and fall and is predictably laid off during the winter season.

Section 14 is not very specific regarding the calculation of a seasonal worker's AWW. Reading the statute can sometimes lead to more questions than answers. Typical concerns regarding the AWW of a seasonal worker may include:

- Can the AWW be calculated using straight division?

- What multiple should be used in the AWW calculation?

- Does the employer need to produce a similar worker payroll?

- Are seasonal workers entitled to weekly benefits during the timeframe they would otherwise be laid off?

The Workers' Compensation Board has provided guidance via its own case law. However, not every claim will yield the same or similar result. If you have questions regarding the proper calculation of a seasonal worker's AWW, contact our office for further information.

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