14. Weekly wages basis of compensation. Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and shall be determined as follows:
1. If the injured employee shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker, and two hundred sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed;
2. If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a five-day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed;
3. If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual average earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment, or other employment as defined in this chapter, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident, provided, however, his average annual earnings shall consist of not less than two hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed, further provided, however, that if the injured employee shall have been in the military or naval service of the United States or of the state of New York within twelve months prior to his injury, and his average annual earnings cannot be fairly determined under subdivisions one and two, then the average annual earnings shall be determined by multiplying his average daily wage during the days so employed by not less than two hundred and forty;
4. The average weekly wages of an employee shall be one-fifty-second part of his average annual earnings;
5. If it be established that the injured employee was under the age of twenty-five when injured, and that under normal conditions his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages.
6. If the injured employee is concurrently engaged in more than one employment at the time of injury, the employee's average weekly wages shall be calculated upon the basis of wages earned from all concurrent employments covered under this chapter. The employer in whose employment the employee was injured shall be liable for the benefits that would have been payable if the employee had had no other employment. Any additional benefits resulting from the increase in average weekly wages due to the employee's concurrent employments shall be payable in the first instance by the employer in whose employment the employee was injured and shall be reimbursed by the special disability fund created under subdivision eight of section fifteen of this article, but only if such claim is presented in accordance with subparagraph two of paragraph (h) of subdivision eight of section fifteen of this article. The employer in whose employment the employee was injured shall be liable for all medical costs.
7. The average weekly wages of a jockey, apprentice jockey or exercise person licensed under article two or four of the racing, pari-mutuel wagering and breeding law shall be computed based upon all of the earnings of such jockey, apprentice jockey or exercise person, including those derived from outside of the state.
Last modified: February 3, 2019