In a recent and unprecedented MA workers’ compensation case, a hospital employee was injured at work after learning of an upcoming promotion, but cannot receive benefits based on the higher wage. According to an administrative judge, the employee’s promotion was an absolute certainty, and the worker’s comp benefits should be calculated based on the new wage. However, the Department of Industrial Accidents (DIA) reviewing board appealed that decision, stating that, “It is the position held at the time of the accident which governs, not some prospective plan in the future which may or may not come to fruition.”
Massachusetts Workers’ Comp Benefits Traditionally Based on Prior 52 Weeks Average Weekly Wage
The DIA’s decision has prompted a further investigation into the workers’ comp statute and how it addresses such out-of-the-ordinary circumstances. Provisions within the statute allow a hearing judge to deviate from using the employee’s prior 52 weeks in average weekly wage (AWW) calculations when unusual circumstances are present. Unfortunately for this employee, the DIA does not consider this situation to warrant deviation from the traditional rules. According to Administrative Law Judge, William Harpin, “The definition of AWW [cannot] be stretched so far as to cover wages that have yet to be earned in a position not yet held.”
Vikki Harris, a Radiology Service Representative at Partners Healthcare System, had been earning an AWW of $703.56 for approximately one year when she learned of her upcoming promotion to Patient Service Representative. Her new AWW was scheduled to be $730, which was similar to other workers in that position. Less than one week before her scheduled promotion, Harris slipped on a wet floor and fractured her kneecap. The fracture left Harris completely incapacitated and unable to work for months. Although Harris is no longer completely incapacitated, she is still physically unable to go back to work. In this particular case, the employee’s injury prevented her from earning a higher paycheck, but that hasn’t changed the outcome of the ruling.
Under §51 of the MA worker’s compensation statute, a worker’s AWW can be increased if he or she can prove that age or acquisition of skills would have most likely led to a higher AWW on the open labor market. However, according to the DIA, this particular case does not qualify under §51. “A simple promotion well into a career does not qualify as a likely wage increase under this statute,” said Harpin. Additionally, since the initial judge had already determined that Harris was entitled to the higher AWW, he never addressed whether or not §51 applied. Had Harris cross-appealed on such grounds, the outcome may have been different. Continue reading