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Employee’s Average Weekly Wage Generally Must be Based on Earnings at the Time of Massachusetts Workplace Accident

file000921513512 morguefile Melodi2In Harris v. Massachusetts General Hospital, a Radiology Service Representative fractured her kneecap in a fall at work about one year after she began working for a hospital. Prior to her accident, the woman received a promotion that was scheduled to become effective six days after her on-the-job injury occurred. As a result, the woman’s average weekly wage would have increased by almost $27.00.

In preparation for her new job duties, the worker apparently trained her replacement to take over her position. While doing so, the woman slipped on a wet floor and sustained a serious knee injury. Following the accident, the employee received medical payments, § 34 workers’ compensation benefits for about six months, and § 35 benefits after that. In June 2012, the worker filed a claim for retroactive benefit payments at the higher anticipated average weekly wage she would have earned beginning on the date of her promotion. An administrative judge found that the woman’s promotion was a certainty and granted the employee’s request based on § 1(1) of the workers’ compensation law.

The woman’s employer then appealed the judge’s decision to the Department of Industrial Accidents Reviewing Board. On appeal, the hospital claimed the administrative judge misinterpreted the law. According to the Board, the plain meaning of § 1(1) of the workers’ compensation law requires that a hurt employee’s average weekly wage be based on the wages earned during the 52 weeks prior to an injury. The Board stated the statute did not provide for use of prospective wages. Although past wages for time periods shorter than 52 weeks were sometimes considered when determining a hurt employee’s average weekly wage, the Board found that the law required the payments to be based on the position a worker was employed in at the time of his or her injury.

Next, the Board stated § 51 of the worker’s compensation law was the only means to apply prospective wages to an individual’s workplace accident. Although the administrative judge failed to consider the section, the Board ruled that its provisions did not apply to the facts of the woman’s case because her higher anticipated wages resulted from a simple promotion rather than an anticipated job progression in the open labor market.

Ultimately, the Department of Industrial Accidents Reviewing Board reversed the administrative judge’s order granting the hurt worker a higher average weekly wage benefit payment for her on-the-job knee injury.

If you or a close family member suffered a serious workplace injury in Massachusetts, you may be entitled to recover workers’ compensation benefits. The hardworking lawyers at Kantrovitz & Associates, P.C. are here to help you navigate the sometimes confusing process of filing your workers’ compensation benefits claim. To discuss your rights with a caring Boston workers’ compensation attorney, contact Kantrovitz & Associates, P.C. online or call us at 800-367-0871.

Additional Resources:

Harris v. Massachusetts General Hospital, Department of Industrial Accidents Reviewing Board Decision No. 033040-11 (September 3, 2015)

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Massachusetts Observes Workers’ Memorial Day in Honor of Employees Killed in Workplace Accidents, May 26, 2015, Massachusetts Workers’ Compensation Lawyer Blawg

Massachusetts Correctional Officer Denied Closed Period Workers’ Compensation Benefits Where Work Stress Was Not a Major Cause of Medical Symptoms, May 21, 2015, Massachusetts Workers’ Compensation Lawyer Blawg

Photo Credit: Melodi2, MorgueFile