Did you know that in Massachusetts an injured worker that had concurrent employment at the time of a work injury can add the average weekly wage from each concurrent employer together in determining his or her average weekly wage? Why is this important? The short answer is because it will provide the injured employee a higher disability rate that is paid by the employer’s workers’ compensation insurance company.
Workers’ Compensation and the Average Weekly Wage
Workers’ compensation is an insurance policy that employers are required to purchase and carry for the benefit of their employees. This insurance policy offers certain benefits to employees, who are injured on the job. Almost all workers in Massachusetts, who qualify, are entitled to workers’ compensation. This is true no matter how many hours are worked per week or how they are paid.
If an employee is injured on the job in Massachusetts and the work injury results in the employee being unable to work and earn wages, he or she may qualify for certain disability benefits. The disability benefits available from workers’ compensation help replace a portion of the wages the injured worker is unable to earn because of the work injury. The amount of the injured employee’s disability benefits from workers’ compensation depend on the employee’s average weekly wage. Therefore, the higher the employee’s average weekly wage, the higher the disability benefits.
Calculating Average Weekly Wage with Concurrent Employment
If an employee is injured in a work related accident and, at the time of the work accident he or she was employed by two or more employers, the average weekly wage for that employee is calculated differently than if he or she was only employed by one employer. There is a statute in Massachusetts that governs this issue. It is Massachusetts General Laws Chapter 152 § 1(1), which provides in part: “ In case the injured employee is employed in the concurrent service of more than one insured employer or self-insurer, his total earnings from the several insured employers and self-insurers shall be considered in determining his average weekly wages.”
It doesn’t matter whether the injured worker was working for both employers on the same day of the work accident. All that needs to be established is that the employee worked for more than one employer during regular periods of the week. It also doesn’t matter whether the two or more jobs were similar or different. For instance, an employee could be employed as a carpenter during the week and a bar tender on the weekends. The only requirement is that the employers be insured by workers’ compensation insurance or self-insured.
Let’s take a look and see how concurrent employment can impact a workers’ compensation claim in Massachusetts:
I recently represented a 50 year old gentleman that was employed as a machine operator in a cardboard factory. He suffered a labrum tear in his right shoulder in an accident on the job in the factory. The factory employer’s workers’ compensation insurance company voluntarily paid him temporary total disability benefits. The insurance company determined his average weekly wage (AWW) to be $960.00. Based upon this AWW, this injured worker was paid total disability at a weekly rate of $576.00 ($960 x 60%). After a few months, the insurance company modified his benefits to partial disability and began paying him partial disability at a weekly rate of $432.00 ($576 x 75%). That’s when he hired me. At our first meeting I gathered all of his information and learned that, at the time of his work injury in the factory, he was also employed by a cleaning company as a part time custodian. As a custodian he worked 24 hours per week at an hourly rate of $15.00/hr. This means that this client also earned $360.00 per week in addition to his pay from the cardboard factory. I confirmed that both employers (the cardboard factory and cleaning company) were insured with workers’ compensation and calculated his AWW based upon concurrent employment to be $1,320.00 ($960.00 + $360.00 (24 hrs x $15/hr)). An Employee's Claim for Benefits was immediately filed on behalf of the employee and ultimately heard by a judge at the Conference. We were successful and obtained an Order for the workers’ compensation insurance company to pay the injured worker temporary total disability at a rate of $792.00 (concurrent AWW of $1,320.00 x 60%). The judge also ordered the insurance company to pay retroactive benefits to make up the difference between what they had paid the employee from the date of his injury up until the Conference Order based upon the actual AWW.
As you can see, concurrent employment can have a significant impact on the average weekly wage and disability benefits that an injured worker can receive. In the example above, the injured worker initially received only $576.00 per week in total disability benefits. After we took on the case, we got our client total disability benefits at a rate of $792.00 per week. That’s an extra $216.00 per week ($792 - $576) for total disability. We also were able to obtain an Order for the payment of total disability instead of the modified partial disability rate.
The increase in the average weekly wage based upon concurrent employment may also have a significant effect on any potential lump sum settlement. This is because when you negotiate a lump sum settlement you are seeking future benefits up front in a lump sum payment. The future benefits are based upon the average weekly wage. The higher the average weekly wage, the higher any potential lump sum settlement.
Get Legal Assistance After Being Hurt On The Job
If you have been hurt on the job in Massachusetts, you should seek legal advice from an experienced workers’ compensation attorney. An experienced lawyer will confirm that you are receiving the benefits you are entitled to and that your average weekly wage is calculated correctly.
Mahaney & Pappas, LLP specialize in workers’ compensation and can advise you about your legal rights. You shouldn’t rely on an insurance company to make sure you are receiving the right amount of benefits. We offer free, no-obligation meetings and case evaluations. Call us today at (508) 879-3500 or contact us online. We are happy to sit down with you and review your legal matter.