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Effect of Wages from Outside Massachusetts on Workers’ Compensation

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In an appellate case from last year, the Massachusetts appellate court considered the case of a worker whose hand was crushed in a rolling machine at work when he was twenty-two years old. He received temporary and total incapacity benefits for a period of time. After that, he worked for many years at an auto supply as a driver, though he still suffered tremendous pain, and then worked at the counter. He underwent a procedure that was supposed to remove the pain, but instead it exacerbated and worsened it.

He applied for total and permanent disability benefits in 2003 and claimed that when he was injured back in 1980, he was young enough that his wage would likely have increased over time. He asked that this factor be considered to determine his average weekly wage. He claimed he was entitled to receive compensation at the 2003 rate because he was permanently disabled from the later recurrence of the earlier injury.

An administrative judge found that the worker was totally and permanently incapacitated from 2003. He also found that if not for the 1980 accident, the worker’s wages would have gone up significantly. Therefore, he ruled that the amount of compensation should be determined by the rate in effect in 2003, which was also subject to cost-of living adjustments.  

The insurer appealed. The reviewing board affirmed the administrative judge’s finding only as to the permanent and total incapacity. It reversed on the amount of the average weekly wage and rate, finding there was no evidence that showed the worker’s wages would have increased because he showed a particular skill that could have been anticipated in 1980. They also found that since the recurrence of the disability happened in Connecticut, his out-of-state wages couldn’t be used to calculate benefits.

The board’s reversal was affirmed on appeal. The Supreme Judicial Court of Massachusetts agreed to hear the case. It determined that the board was right that there was insufficient evidence to find the worker was entitled to more compensation based on an amount higher than his average weekly wage. A worker must show he is on a path before the injury that would lead to wage increase based on acquisition of skills. This path could be, for example, the path in construction trades of a worker who goes from being an apprentice to journeyman to a master.

The court did, however, find that the compensation should be based on the average weekly wage he had in his out-of-state job in 2003. A rule that had previously been articulated in Massachusetts’ case law was that out-of-state wages should not be used to calculate workers’ compensation benefits.

However, the Supreme Judicial Court explained that the holding was limited to cases in which a worker earned wages out of state after suffering latent injuries like asbestos exposure that didn’t result in incapacity benefits eligibility for at least five years. In circumstances such as these, however, it didn’t matter whether the final wages were earned in Massachusetts or outside Massachusetts.

If you have been seriously injured on the job, an experienced Massachusetts workers’ compensation attorney may be able to help you navigate complex workers’ compensation laws. Contact us by calling 800-367-0871 or using our online contact form.More Blog PostsMisclassification of Workers in Massachusetts, November 6, 2013

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