May 2, 2019

You have a work injury that takes you out of work. In most instances, you will not receive your regular wages from your employer while you are not working – you will receive Workers’ Compensation payments from the insurance carrier. But those payments are not as much as you receive in your paychecks. How do they figure out how much your Workers’ Comp benefits should be?

Under the Workers’ Compensation Law, while out of work you are entitled to up to two-thirds (2/3) of your average weekly wage (“AWW”). Generally, your AWW is calculated using your wages from the 52 weeks prior to your injury. Your employer or the insurance carrier is required to file a form with the Workers’ Compensation Board which shows your weekly earnings from the year leading up to your injury. In the most general terms, those wages are added up and multiplied by 2/3 to determine your AWW.

There is also a maximum benefit amount set by the Workers’ Compensation Board. That maximum rate is dependent on the date of your accident. The Workers’ Compensation Board just recently issued a Subject No. increasing the maximum weekly rate for Workers’ Compensation claims with a date of accident on or after 7/1/19 to $934.11. This was determined by taking 2/3 of the NYS average weekly wage of $1,401.17 as decided by the Superintendent of the Department of Financial Services. The current max rate is $904.74 for injuries on or after 7/1/18. In order to determine your particular average weekly wage and maximum benefit rate, special consideration and calculations may apply that are not always caught or understood by the insurance company.

There are also special circumstances for injured workers who are under the age of 25 when they are hurt at work. This is known as minor’s wage expectancy. At the time of permanency in a case where the injured worker was under 25 at the time of the injury, consideration should be given to what your wages would have been at the age of 25. This can be a disputed issue as factors such as education, promotions, and other similar workers should be considered in determining potential wage expectancy.

To further discuss the particulars regarding your AWW and the rate you should be paid for your claim, contact our office to speak with one of our attorneys.

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