In Massachusetts, an injured worker’s average weekly wage for purposes of benefits may include money earned through certain concurrent employment. In Lubofsky v. Lowe’s Home Centers, Inc., a part-time home improvement store employee apparently hurt his neck while unloading items at work. At the time, the man worked three jobs, including a full-time position with a federal agency. As a result of his injury, the worker was unable to return to his position at the home improvement store. He was also forced to reduce his hours at his full-time job. The employee’s injury had no effect on his third job.
Following the accident, the man’s employer accepted liability for the worker’s injury. As a result of his lost earning capacity, the employee received benefits under § 35 of the Massachusetts workers’ compensation law. Next, the worker sought recalculation of his average weekly wage based on his full-time position. After the man’s initial request was denied, he filed an appeal. Prior to a hearing on the issue, an administrative law judge (“ALJ”) allowed the home improvement store to join a request to terminate the worker’s benefits.
Although the ALJ determined the worker was partially incapacitated, his full-time position was not with an employer that was insured or self-insured under Chapter 152. As a result, the judge found that such wages could not be used to calculate his weekly payments. Additionally, the ALJ denied the home improvement company’s request to discontinue paying the man workers’ compensation benefits. After that, the man appealed the ALJ’s order to the Department of Industrial Accidents Reviewing Board.
On appeal, the man argued the judge committed error when he failed to include the worker’s wages from his full-time job in his workers’ compensation benefits calculations. The employer countered by stating only those wages earned through a concurrent insured or self-insured employer may be used to calculate an employee’s average weekly wage under the plain meaning of §1 of the workers’ compensation law.
After examining the relevant case law, the Board said the law specifically states only those wages earned through insured and self-insured concurrent employers under Chapter 152 may be used when calculating an injured worker’s average weekly wage. In addition, the Board found that allowing the worker to include wages earned through an uninsured federal agency could potentially create significant “unfunded liability.” Because of this, the Department of Industrial Accidents Reviewing Board affirmed the ALJ’s decision.
If you were hurt at work in Massachusetts, you should speak with a hardworking lawyer about your right to recover compensation for your harm. The seasoned workers’ compensation attorneys at Kantrovitz & Associates, P.C. are available to help you recover the benefits you may be entitled to following a job-related accident. To speak with a knowledgeable Boston workers’ compensation lawyer about your situation, give Kantrovitz & Associates, P.C. a call at 800-367-0871 or contact us online.
Lubofsky v. Lowe’s Home Centers, Inc., Department of Industrial Accidents Reviewing Board Decision No. 006565-12 (July 22, 2015)
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