Massachusetts Appellate Court Discusses Average Weekly Wage Calculations for Seasonal Employees

One of the most important steps in a workers’ compensation claim is to determine the injured worker’s average weekly wage. This figure is used to determine the amount of benefit payments the worker should receive. Although there are clear rules and procedures that a court must use to determine the employee’s average weekly wage, there are often disputes about the evidence admitted to assist the judge with performing the calculation. As seasoned Boston work injury lawyers, we are standing by to help you ensure that you are treated fairly during your claim and that you receive the full amount of compensation that you deserve.

A recent claim involved an appeal from an employee of a hearing that required the Worker’s Compensation Trust Fund to pay benefits at the rate of $301.37 per week based on an average weekly wage calculation of $502.28. The employee reportedly suffered a work-related injury while working for a painting company. The employee painted houses primarily during the summer for a period of six months and also worked seasonally at the restaurant.

The only issue in the matter was whether the judge reached an appropriate determination regarding his average weekly wage. One of the stipulations that the parties entered into during the claim was that the employee was concurrently employed at a restaurant where he worked roughly 15 hours per week, earning $226.25 each week.

During the proceedings, the injured worker testified that he worked seasonally as a painter and at the restaurant job. As a result, the judge stated that a seasonal average weekly wage is calculated by dividing the earnings over the previous 52 weeks instead of the number of weeks that the employee actually worked.

On appeal, the worker argued that the insurer did not raise any issues regarding seasonal employment until the hearing and that the employee was denied proper procedural law as a result. The appellate court rejected this argument finding that the issue of seasonal employment was discussed during the hearing when the employee testified about his work for the painting company. The employee did not object to questions or comments about the seasonal nature of his job during the hearing, and the record showed that the employee cross-examined witnesses during the hearing who testified about the seasonal nature. As a result, the appellate court rejected the plaintiff’s argument on this point and affirmed the lower court’s determination of the worker’s average weekly wage as a painter.

The worker also appealed on the basis that the lower court made an unlawful change to one of the stipulations that the parties agreed to before the hearing. The court agreed with the employee on this point and remanded the matter for additional proceedings to determine the employee’s correct average weekly wage at the restaurant.

If you were hurt at work, you probably have numerous questions about workers’ compensation claims and the best way to go about protecting your rights. At Pulgini & Norton, we proudly serve workers who were injured while on the job with gathering evidence, appearing in court, filling out paperwork, and obtaining the medical treatment and weekly benefits that they deserve. To schedule a free consultation, please call us as soon as possible at 781-843-2200 or contact us online.

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