When a workers’ compensation claimant does not provide enough evidence to calculate his or her average weekly wage based on the statutory methods, an Administrative Law Judge (“ALJ”) may use a common sense approach. In William Stone v. All Seasons Painting and Decorating, Board No. 018409-08, a worker was seriously hurt when he fell from a ladder while applying exterior paint to a Springfield home. As a result of his workplace accident, the man sought workers’ compensation benefits from his employer. Although an ALJ found that the man’s injury merited total incapacity benefits, there was limited evidence available to determine his average weekly wage.
At a workers’ compensation hearing, the man established that he agreed to accept about $1,000 from his employer to paint the home. The employee also stated that he fell from the ladder after working on the project for less than two days. Following his injury, the employer terminated the man and paid him $500. The worker claimed that he earned $8,000 during the previous year painting homes and performing a variety of other jobs. As a result of the evidence offered at the hearing, the ALJ determined that the worker was engaged in seasonal work at the time of his accident. Since such a determination requires that an employee’s average weekly wage be calculated by dividing a worker’s earnings during the previous year by 52, the ALJ found that the man’s average weekly wage was about $150.
After receiving his benefits award, the worker appealed the ALJ’s decision to the Department of Industrial Accidents Reviewing Board. According to the worker, the ALJ committed error when he classified the injured man as a seasonal employee. The employee claimed there was no evidence to support the conclusion that he was a seasonal worker. In addition, the man argued that the fact that he did not collect unemployment benefits during a portion of the year supported his claim. Instead, the employee stated his average weekly wage should be more than $1,700, based on what he was paid by his employer for the two days of work that preceded his accident. The hurt worker also claimed that a higher average weekly wage was merited because he earned $1,250 per week on another job for the same employer.
On appeal, the Reviewing Board stated the applicable average weekly wage payable to an injured employee in Massachusetts is a question of fact. Since the length of the man’s employment was so short and little evidence was provided regarding the wage that similar workers normally earn in the same community, the Board said the ALJ could not use the traditional statutory means of calculating the worker’s wage. The Board continued by stating an ALJ may use a common sense method of calculating an employee’s average weekly salary in order to arrive at a fair estimate in such situations.
According to the Board, there was no evidence to support the finding that the injured man could expect continuous employment as a painter throughout the year. In addition, both the man and his employer acknowledged that painting could be a seasonal job. The Board also dismissed the man’s claim that his failure to receive unemployment benefits indicated his job was continuous because his employer disputed the existence of an employment relationship, and he could have simply been denied benefits. The Board added that an ALJ may not order an average weekly wage that places a worker in a better position than he or she started in. Finally, the Board affirmed the ALJ’s decision calculating the hurt worker’s wages at about $150 per week.
If you suffered a severe injury at a dangerous workplace in Massachusetts, you may be eligible to receive workers’ compensation benefits. The hardworking attorneys at Kantrovitz & Associates, P.C. are available to help you navigate the process of your worker’s compensation case. To speak with a knowledgeable Suffolk County workers’ compensation lawyer about your situation, contact the veteran workers’ compensation advocates at Kantrovitz & Associates, P.C. through our website or give us a call at 800-367-0871.
William Stone v. All Seasons Painting and Decorating, Department of Industrial Accidents Reviewing Board No. 018409-08 (August 21, 2014)
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