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Massachusetts Board Upholds Calculation of Average Weekly Wage for Injured Employee Based on Seasonal Work Classification

ladder on buildingMassachusetts statutes provide a specific, formulaic approach to calculating the amount of weekly benefit payments that an injured employee is entitled to receive. This calculation is based largely on the injured employee’s average weekly wage. A key component of any workers’ compensation claim is ensuring that you provide enough information for the claims adjuster to calculate your average weekly wage so that you receive the maximum amount of benefits to which you are entitled. As Massachusetts workers’ compensation lawyers, we have assisted many victims with protecting their rights and securing compensation. As a recent case demonstrates, having a knowledgeable attorney on your side can prevent delays in your claim.

The claimant was injured on the job when he fell from a ladder. The claimant was painting the side of a building in Springfield, Massachusetts when the accident occurred. He notified his employer, which filed a claim for workers’ compensation benefits with its insurer. An administrative law judge reviewed the claim and concluded that the claimant was entitled to receive total incapacity benefits. The ALJ also noted, however, that there was insufficient information regarding his average weekly wage.

At a hearing on the issue, the claimant indicated that he had entered into an agreement to receive roughly $1,000 from the employer to paint the home. He also indicated that he fell from the ladder on the second day of working on the project. The employer fired the man on the day after his injury and paid him $500. He also testified that he earned roughly $8,000 in the prior year for his work painting homes and that he also performed a variety of other employment occupations. Based on this evidence, the ALJ concluded that the claimant was performing seasonal work at the time he fell from the ladder. Since calculating an average weekly wage involves dividing the claimant’s earnings by 52 weeks, the ALJ concluded that his average weekly wage was $150.

The claimant appealed this decision, alleging that the ALJ erred in classifying him as a seasonal worker. According to him, there was nothing in the record showing that he worked seasonally. Instead, he argued that his average weekly wage should have totaled over $1,700, based on the payment he received from his employer for two days of work. He also noted that the higher amount was more accurate, based on the wages he earned for another job he performed for the same employer.

On review, the board stated that since the length of the claimant’s employment was so short, and since there was minimal information about the wage that other workers typically earn in the same geographical area, the ALJ should not have used the typical statutory formula for determining an average weekly wage. Instead, the ALJ should have used common sense to achieve a fair estimate. The board then turned to the evidence at the hearing and found that there was no evidence suggesting that the claimant would expect continuous employment throughout the year painting. Also, it noted that the worker and the employer had acknowledged that painting was often a seasonal occupation. Finally, the board stated that an ALJ cannot calculate an average weekly wage that puts the injured employee in a better financial position than when he or she started. Accordingly, it upheld the ALJ’s decision to set the wages at $150 per week.

If you have been injured at work or are involved in a workers’ compensation claim, you should contact a seasoned Massachusetts workers’ compensation lawyer. At Pulgini & Norton, our dedicated team of legal professionals offers a free consultation to help you learn about your rights. Call us now at 781-843-2200 or contact us online to set up your appointment.

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