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Smith Duggan Reduces Weekly Workers' Compensation Benefits Self-insured Company Must Pay to Injured Employee

Smith Duggan successfully appealed an administrative judge’s order requiring a major Boston hospital to pay workers’ compensation benefits to an injured employee at a higher rate than the statute requires. The Workers’ Compensation Reviewing Board reversed the decision of the administrative judge based on the legal arguments made by Smith Duggan.

The case involved an employee who was about to be promoted to a new position at a higher rate of pay, but had not started working in the new position yet.  On her last day in her old position, the employee slipped and fell, injuring her knee.  The employee argued that the amount of her weekly benefits should be calculated based on the rate of pay that she would have earned in her new position.  The administrative judge adopted the employee’s position, reasoning that paying benefits based on the new, higher rate of pay satisfied the statute’s goal of compensating an employee for lost earning capacity.

The Massachusetts Workers’ Compensation Act, G.L. c. 152, §1(1), requires that an employee’s average weekly wage be calculated based on the amount the employee was earning prior to the date of the industrial accident.  While there are alternative means of calculating an employee’s average weekly wage, those had not been applied to a case like this, where the employee had not yet worked in the position with the claimed higher rate of pay.  The Reviewing Board reversed the administrative judge’s decision as to the employee’s compensation rate, holding that as a matter of law, the alternative methods of determining the average weekly wage are applicable only when an employee’s injury occurs while she is performing the duties of her position; duties which are to begin after the accident do not result in a fair estimate of the employee’s earning capacity.  This decision creates a bright-line rule: if the employee has not yet begun working in a position with a higher rate of pay, her average weekly wage must be calculated based on the rate of pay she was earning prior to the day of her industrial accident.

See In re Vikki Harris, (Harpin, A.L.J.) (Calliotte, A.L.J., concurring in part and dissenting in part) (DIA) (Board No. 033040-11) (Sept. 3, 2015).

Should you have any questions about a workers’ compensation issue, please feel free to contact Pauline A. Jauquet, Esq. at polly.jauquet@smithduggan.com or 617.228.4463.

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