A hurt Massachusetts employee’s average weekly wage is calculated differently from his or her post-injury earning capacity when determining workers’ compensation benefits. In Goodhue v. Federal Express, a package handler for a delivery service injured his wrist at work in June 2011. At the same time, the Massachusetts man operated a seasonal irrigation business. Although the hurt employee sought workers’ compensation benefits for his wrist harm, he apparently continued to earn self-employment income through his seasonal business. More than one year after his workplace injury occurred, the employee underwent three separate surgeries on his wrist.
Following a hearing, a workers’ compensation judge ruled that the employee’s wrist injury prevented him from performing heavy lifting for the delivery service. Because of this, the judge awarded the worker § 34 total disability benefits for a period of one month beginning on the date of his workplace accident, for a period of two months beginning on the date of his first surgery, for two weeks following his second surgery, and for three weeks following his third surgical procedure.
Since the hurt man did not purchase workers’ compensation insurance for his irrigation business, the income derived from his self-employment was not factored into the calculation of the employee’s average weekly wage. As a result, the judge set the worker’s average weekly wage at the parties’ stipulated amount of $226.79. After that, the administrative judge concluded the man was not entitled to further weekly workers’ compensation benefits and ordered that the employer could recoup about $5,400 in overpayments made to the man while he operated his seasonal business.
Next, the employee filed an appeal with the Department of Industrial Accidents Reviewing Board. On appeal, the worker argued that since the judge found he was seasonally employed with the irrigation business, this income should have been averaged over the course of 52 weeks instead of the actual number of weeks worked in order to calculate his employer’s overpayment. After stating neither party challenged the accuracy of the workers’ compensation judge’s calculations, the Board said it would examine the judge’s methodology.
The Board said the worker clearly confused his average weekly wage with his post-injury earning capacity when filing his appeal. According to the Board, the judge used the appropriate methodology when determining the injured worker’s actual earning capacity. The Board continued by stating that 152 §1(1) defines an employee’s average weekly wage as any earnings collected during the 12 months prior to a workplace injury, divided by 52. Although this number serves as a basis for any disability benefit payments a hurt worker may be entitled to, the Board said an employee may not recover the average weekly wage for any week during which he or she earned wages that were greater than or equal to the established average weekly wage. Since the judge appropriately calculated the overpayments that were made to the hurt worker, the Department of Industrial Accidents Reviewing Board affirmed his decision.
If you were injured in a Suffolk County workplace accident, you should contact an experienced Boston workers’ compensation lawyer who can help you protect your rights. The hardworking attorneys at Kantrovitz & Associates, P.C. are here to help you recover the benefits you deserve based on the severity of your workplace injuries. To discuss your right to receive workers’ compensation benefits with a skilled advocate, contact Kantrovitz & Associates, P.C. through our website or give us a call at 800-367-0871.
Goodhue v. Federal Express, Department of Industrial Accidents Reviewing Board No. 014727-11 (October 13, 2015)