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Massachusetts Workers’ Compensation Reviewing Board Clarifies How to Calculate Average Weekly Wage

After a workplace accident, an injured worker can file a claim for lost wages in addition to payments for medical expenses. The Commonwealth’s statute provides a formula for calculating the wages, which incorporates the “average weekly wage” (AWW). These are known as § 34 benefits. In a recent board decision, Harris v. Mass. Gen. Hosp. (Bd. NO. 033040-11), an injured nurse sought to increase her § 34 benefits when she sustained a fractured kneecap after slipping on some wet flooring. knees-1535761-639x426.jpgShe had been promoted and was scheduled to begin her new position around the new year, which included increased wages. Her injury occurred right before she was scheduled to begin her new position.

Immediately following the accident, the nurse sought lost wage benefits. She was granted them, based on the wage she was making prior to the fall. The injured nurse then filed a claim six months after the accident to obtain a retroactive readjustment and reinstatement of her § 34 benefits, using the new salary that would have begun two weeks after the accident. The judge awarded her the higher amount, concluding that the law provided him the flexibility to calculate the AWW using a wage that would have been earned during the time following the accident. The hospital, who was self-insured, appealed the decision.

The reviewing board agreed with the hospital’s argument that the AWW is not calculated based on future wages, even if they are “certain” in this case because the injured nurse was already promoted to a position with a known wage. The reviewing board analyzed the history of prior cases and decisions, which have used a number of ways to calculate future wages, but only wages made before the accident. Examples included using four weeks of past wages, using two weeks of past full-time wages, and even using just one day of full-time wages when an employee changed from part-time to permanent full-time on the day of the accident. The board concluded that Massachusetts law allows for all types of full-time wages to be considered, but only if they had been earned prior to or at the time of the accident. The board felt that the definition of the AWW could not be stretched to include wages that have not yet been earned.

The board did discuss the lone possibility under the law of calculating future wages. This is through § 51 of the workers’ compensation statute, which allows the calculation of a higher AWW when the injured employee demonstrates that she was on a path before her injury that, for a person of her age and experience under natural conditions, likely would have led to a wage increase in the open labor market. This requires age to be considered as well as the ongoing acquisition of skills or work experience. The board did not feel that one promotion qualified for consideration under § 51. The board reversed the judge’s calculation of the higher AWW but allowed the calculation at the lower amount and the award of benefits to stand.

The Massachusetts workers’ compensation attorneys at Karsner & Meehan understand the difference extra money can make to a household following an injury. Our attorneys can aggressively pursue and maximize all benefits to which you are entitled. Call our office today for a free, confidential consultation at 508.822.6600.

More Blog Posts:

Massachusetts Supreme Court Ruling Allows Injured Couple to Keep Millions in Awarded Damages, Massachusetts Injury Lawyers Blog, September 28, 2015
Massachusetts Supreme Judicial Court Affirms Multi-million Dollar Verdict in Medical Malpractice Wrongful Death Suit, Massachusetts Injury Lawyers Blog, September 15, 2015