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Massachusetts Reviewing Board Analyzes Affect of Seasonal Employment on Average Weekly Wage

In a recent decision, the Massachusetts Department of Industrial Accidents Reviewing Board affirmed a judge’s determination of average weekly wages in a workers’ compensation dispute. The employee had sustained an injury to his wrist while working as a package handler for Federal Express. Along with his employment at FedEx, the employee also worked at his sprinkler business, as well as engaging in snowplowing. FedEx’s insurer sought recoupment for benefits paid to the employee when he was receiving income from his other businesses.mailbox-1471893-639x852

The judge adopted the opinion of the § 11A medical examiner, finding that the employee could not perform the heavy work required in his position at FedEx.  However, the judge also found that the employee had continued to operate his seasonal sprinkler business for six months out of the year, and he also had earnings from snowplowing during the winter months. Based on the evidence, the judge determined that the employee was entitled to no further weekly benefits and ordered recoupment of a specified amount to FedEx’s insurer.

The issue on appeal was whether the judge properly performed an average weekly wage calculation with the income derived from the employee’s second business and from operating a snow plow. The employee argued that, since the judge found that his post-injury work was seasonal employment, these earnings should be averaged over the course of a year, as they would be in determining average weekly wage, rather than over the actual number of weeks involved.

Pursuant to G.L. c. 152 § 1(1), average weekly wages are the earnings of the employee during the 12 months preceding the date of injury, divided by 52. This calculation is then the basis for determining the employee’s benefits during any period of disability after the date of injury. If, at any time after the date of injury, the employee is able to earn his established average weekly wage, he is no longer entitled to weekly incapacity benefits.

In determining the employee’s earning capacity, the judge uses the greatest amount derived from the four methods provided in G.L. c. 152, § 35D. These include the actual earnings of the employee during each week and the wages that the employee is capable of earning, among others. In the current case, the judge found that the employee’s actual earnings from his business represented the greatest amount he could earn during the period of operation. The Board found that the fact that the employment may be “seasonal” does not affect the determination. Finding that the judge’s analysis appropriately included the actual earnings of the employee during specific periods of time, the Board upheld the decision.

If you have suffered a mental or physical injury while working on the job, you may be entitled to compensation for your injury as well as lost wages. At the Massachusetts firm of Pulgini & Norton, our workplace injury attorneys represent and advise those pursuing workers’ compensation benefits. To discuss your benefits claim with one of our knowledgeable attorneys, contact our office at (781) 843-2200 and schedule a consultation.

More Blog Posts:

For Massachusetts Workers’ Compensation Recipient, USPS Earnings Not Included in Average Weekly Wage, Massachusetts Workers’ Compensation Lawyer Blog, published August 5, 2015

Massachusetts Employee’s Average Weekly Wages Based on Prior Salary, Not Anticipated Salary, for Workers’ Compensation Benefits, Massachusetts Workers’ Compensation Lawyer Blog, published October 6, 2015

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