New York Codes, Rules and Regulations › Title 12 - DEPARTMENT OF LABOR › Chapter V - Workers' Compensation › Subchapter H - Disability Benefits › Article 1 - Regulations Under Disability Benefits Law › Part 363 - Claims › Section 363.9 - Computation of average weekly wage

Current through Register Vol. 46, No. 28, July 10, 2024
(a) When all of the employee's employment
					 during the eight weeks immediately preceding and including his last day worked
					 prior to commencement of disability has been performed in the employ of a
					 single covered employer, the average weekly wage shall be the amount determined
					 either by dividing the total wages paid such employee by such employer during
					 the last eight weeks immediately preceding and including his last day worked
					 prior to commencement of such disability; or on the same basis, but excluding
					 the week in which the disability began (whichever is the higher amount) by the
					 number of weeks during which he worked on at least one day during such eight-
					 or seven-week period.
(b) When the
					 employee is in the employment of more than one covered employer at the
					 commencement of disability, the average weekly wage with respect to employment
					 with each such employer shall be the amount determined either by dividing the
					 total wages paid the employee by such employer during the last eight weeks
					 immediately preceding and including his last day worked prior to commencement
					 of such disability; or on the same basis, but excluding the week in which the
					 disability began (whichever is the higher amount) by the number of weeks during
					 which he worked on at least one day during such eight- or seven-week period
					 with such employer.
(c) When all of
					 the employee's employment during the eight weeks immediately preceding and
					 either including his last day worked prior to commencement of such disability,
					 or excluding the week in which the disability began, has not been performed in
					 the employ of his last covered employer (or employers if concurrently eligible
					 for benefits to be provided by more than one covered employer), the average
					 weekly wage shall be determined either by dividing the total wages received
					 from his last covered employer (or employers if concurrently eligible for
					 benefits from more than one covered employer) during the last eight weeks
					 immediately preceding and including his last day worked prior to commencement
					 of such disability, or on the same basis, but excluding the week in which the
					 disability began (whichever is the higher amount) by the number of weeks during
					 which he worked on at least one day during such eight-or seven-week period, in
					 such employment(s).
(d) In the
					 event the computation of average weekly wage is made pursuant to subdivision
					 (b) or (c) of this section and the employee notifies the employer or the
					 carrier that the average weekly wage upon which his benefits were computed does
					 not fairly represent his normal earnings and the employee presents a statement
					 reasonably identifying his former covered employers and the amount of wages
					 received from such employers to support this contention, the average weekly
					 wage will again be computed by dividing the total wages received from all
					 covered employers during the eight weeks immediately preceding and including
					 his last day worked prior to commencement of such disability by the number of
					 weeks during which he worked on at least one day in such employment. The higher
					 average weekly wage arrived at by this method or the method provided under
					 subdivision (b) or (c) of this section, whichever is applicable, shall be used
					 as the employee's average weekly wage.
(e) The average weekly wage to be used under
					 any plan may be computed in accordance with the provisions of such plan filed
					 with and accepted by the chairman.
(f) An employer may, in accordance with
					 regular practice, compute average weekly wage on the basis of payroll weeks;
					 provided, however, that any employee of such employer may request that the
					 period used include the last day worked.