FULL BOARD HOLDS THAT AN EMPLOYEE CANNOT BE CONSIDERED A SIX-DAY WORKER MERELY BECAUSE HE HAS WORKED MORE THAN 270 DAYS

In a recent Mandatory Full Board Appeal filed by the Law Offices of Melissa A. Day, PLLC, the Board held that when deciding a claimant’s average weekly wage the initial determination in any case is whether an employee is deemed to be a five or six day worker. Although this is not a new concept in the Workers’ Compensation arena the Full Board has made one significant clarification: whether an employee is deemed to be a five or six-day worker is a determination that is made independently based on the facts of the case prior to determining which multiple under WCL § 14 is appropriate for calculating the average weekly wage.

This is an excellent decision from the Full Board on this issue. The Full Board has specifically found within this Decision that “[i]n so far as this decision is in conflict with any earlier decision addressing this issue, the board disavows such other decisions in favor of the explanation and interpretation contained herein.” The significance of the Decision lies in the specific facts of the case and the prior Board Panel Decisions.

Previously, there were numerous Board Panel decisions that were summarily relying upon the number of days worked by an employee as reflected on the C-240 to make the determination of whether a worker was a five or six day worker. <u>Rosina Foods</u>, 2013 NY Wrk. Comp. 0602001 (NY Wrk. Comp. 2013). In <u>Rosina Foods,</u> the Board affirmatively stated:
<blockquote>[T]he C-240 provides a guideline that the 260 multiple is to be used for claimants who worked at least 234 days and the 300 multiple is to be used for claimants who worked at least 270 days in the 52 weeks prior to the date of the accident.</blockquote>
<u>Id</u>. <em>See also</em>, <u>Nutreco USA, Inc.,</u> 2014 NY Wrk. Comp. 0416882 (NY Wrk. Comp. 2014).

In <u>Kistner Concrete</u>, the C-240 indicated that the claimant worked 271 days the year preceding the accident.  A closer review of the C-240 illustrated that in the 52 weeks preceding the injury of record, the claimant worked a five-day week for 41 weeks, and 11 six-day weeks.  When setting the AWW the WCLJ noted that the claimant had “past two seventy, he gets the three hundred multiple” and set the average weekly wage using a 300 multiple.

Of note, and raised on Appeal, only 10 weeks of reported payroll exceed the 300 multiple AWW set by the WCLJ. For the balance of 42 weeks, the claimant earned an average of $100 less than the 300 multiple calculation used by the WCLJ.   Despite these facts, the two members of the Board Panel still <em>affirmed</em> the WCLJ’s use of a 300 multiple. In affirming, the two member Panel noted the that C-240 creates a “guideline that the 300 multiple is to be used for claimants who worked at least 270 days in the 52 weeks prior to the date of accident.” The one member dissent felt this was a misinterpretation of the plain language of the form C-240 that created an overinflated average weekly wage.

On Mandatory Appeal to the Full Board it was argued successfully by the self-insured employer that this is an erroneous interpretation of the plain language contained within the C-240. It was argued by the self-insured employer that the above referenced decisions, along with their progeny, misinterpret the instructions on a form C-240. The form makes clear that similar worker payroll is necessary when a five-day worker has worked less than 234 days in a 260 day work year and that similar worker payroll is necessary when a six-day worker has worked less than 270 days in a 300 day work year. There is no conclusion drawn nor guideline created by the C-240 that an employee who is a five-day worker is entitled to a six-day worker calculation.  Rather, the C-240 provides instruction as to what constitutes a substantial portion of the year for a five-day worker and a substantial portion of the year for a six-day worker so that similar worker payroll can be provided, if necessary. However, the guideline for when to submit similar worker payroll is not a mandate of the Board in determining when a 260 multiple or 300 multiple pursuant to WCL § 14 (1) is applicable. Instead, determination as to the appropriate multiple is required on a case by case and fact by fact basis.

The Full Board has resolved this erroneous interpretation of the C-240 by this decision and specifically noted that the first test is an independent review of the facts to determine whether an employee is a five or six-day worker.  Although the C-240 is a factor to be reviewed in that determination of whether an employee is a five or six-day worker it is not the sole factor.  Once there is a determination of the claimant’s status as a five or six-day worker then the calculation of the average weekly wage using the appropriate multiple can be completed.

Links to the decision is below:

https://thelomad.com/getmad.today/wp-contentwww.wcb.ny.gov/content/main/wclaws/Decisions/2015July/KistnerConcreteProductsInc.jsp