Shy of 234-day Guideline, Driver Worked ‘Substantially the Whole’ of the Year

Frank Ferreri

New York, NY ( – Whether an employee in New York works “substantially the whole” of the year leading up to an on-the-job injury can make a big difference in the calculation of his average weekly wage.

While the state guidelines set 234 days as the typical number to constitute “substantially the whole,” as the court explained in Foster v. Fedex Freight Inc., No. 529821 (N.Y. App. Div. 11/12/20), a lower mark – 225 to be exact — can make the cut, depending on the circumstances.

Average Weekly Wage

A FedEx driver experienced an injury while trying to sit in a chair at work. FedEx submitted a state-required form indicting that, for the 52 weeks preceding the accident, the driver had worked 225 days and earned $53,125.85 plus $800.61 in bonuses.

Based on these numbers, the workers’ compensation law judge established the claim for a work-related lower back injury and set the driver’s average weekly wage at $1,198.37. FedEx sought administrative review of the average weekly wage calculation.

The review board upheld the decision, although it noted that New York traditionally applied a 234-day guideline for determining whether a worker worked “substantially the whole” of the preceding 52-week period. According to the board, the driver worked substantially the whole of the year as a five-day worker by working 225 days.

FedEx appealed the board’s decision to court.

‘Substantially the Whole’

In New York, the average annual earnings of a five-day worker who worked for his employer during “substantially the whole of the year immediately preceding the injury” are calculated by multiplying the worker’s daily wage by 260.

If the worker didn’t work “substantially the whole of the year,” then the average annual earnings are calculated based upon the wages of a “similarly situated” employee. This means that an employer can present evidence showing what kind of wages someone in the worker’s job should receive by comparison to other workers with similar jobs and hours.

In this case, the court found that the 225-day mark was close enough to the 234-day standard to support the worker’s case that he worked “substantially the whole” of the preceding 52 weeks.

The court noted that the driver worked 28 weeks as a five day worker, for 54 percent of the preceding 52-week period and the other 24 as a four-day or less worker. Although the state generally followed the 234-day rule, it wasn’t set in stone, and New York law doesn’t require any particular number of days to qualify as “substantially the whole of the year.”

In the court’s view, the 225-day mark was enough for the driver.

“Inasmuch as the record evidence establishes that [the driver] worked the majority of the 52 weeks preceding his injury as a five-day worker for a total of 225 days, together with the fact that the employer regarded [the driver] as a full-time worker who worked a standard work week, we find that the [review board’s] calculation of [the driver’s] average weekly wage using the 260 multiple is supported by substantial evidence under the unique circumstances presented here,” the court reasoned.

As a result, it upheld the board’s affirming the WCLJ’s conclusion.

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