I get asked all the time:
Leo, why can’t we just use a straight divisor to calculate the average weekly wage?
The short answer?
Because under the Workers’ Compensation Law, there is no such thing as a ‘straight divisor’ – at least not as a default rule. Outside of situations where both parties stipulate to using a straight divisor, the Board has an extremely narrow basis for doing so.
The Board has consistently held that, based on the statute, the average weekly wage is calculated using multipliers, not straight division.
Generally:
- 260 multiplier for a 5-day worker
- 300 multiplier for a 6-day worker
- A different multiplier if the claimant worked some other schedule; however, the multiplier cannot be less than 200.
That’s the statutory framework—and the Board applies it religiously.
However, courts recognized an important principle through judicial precedent. Before a multiplier can be used, the claimant must have been fully available for employment before the injury. Please note that the carrier or self-insured employer has the burden of proof to show that the claimant’s employment before the accident was self-limiting, and therefore, the multiplier is not applicable. But going to the point:
- The Third Department explained this in Kellish v. Kellish Tire Sales:
The 200-multiplier applies only if a part-time claimant was fully available for the employment, and it does not apply if the claimant voluntarily limited their availability.
So what happens if the claimant’s job was self-limiting?
That’s when the Board may use a straight divisor.
For example, in case Employer: Madison-Oneida BOCES (WCB# G227 3590; July 28, 2020), the claimant worked as a substitute teacher where she testified that she was only available three days a week, and was not available on Mondays and Fridays because she took a care of a family member. There was also no evidence on the record that the employer was closed on Mondays and Fridays. Therefore, based on this, the Board found that she was not fully available for employment, and used a 52-week divisor because it most accurately reflected her annual earning capacity.
So no—straight divisor isn’t the rule. It’s the exception.
And it only applies when the evidence supports it. But if you do prevail proving that the claimant’s employment before the accident was self-limiting, that could save you thousand of dollars in indemnity.