Average Weekly Wage

In Massachusetts, your workers’ compensation benefits are based on the amount that you had been earning before you became disabled. This amount is referred to as your "average weekly wage." For example, if your average weekly wage is $500.00, then your total disability benefits will be 60% of that or $300.00.

Calculating Your Average Weekly Wage - If you worked for your employer for a year or more, your average weekly wage will be calculated by dividing the amount that you earned for the 12 months before the injury by 52 weeks. If you worked for your employer for less than 12 months, but long enough for a pattern of wages to develop, your average weekly wage will also be based upon your own earnings. If, however, you only worked for your employer for a short period of period of time, the Department will look at the wages of a "like employee." A like employee is a person doing the same job that you were, another person working for your employer at the same grade or another person working for a different employer in the same class of employment. If you missed less than 2 weeks of work, those weeks will be included in your average weekly wage. Conversely, if you lost more than 2 weeks of work during a 52 week period, your average weekly wage will be based upon the number of weeks that you actually worked.

Proving Your Average Weekly Wage - Massachusetts has a fair wage and hour law, M.G.L. c. 148, §149, that requires that your employer provide you with a record showing the period worked, the number of hours worked and the hourly rate. In my practice, it is not uncommon for employers to fail to comply with this provision, either by paying their employees in cash or with checks without paystubs. In such cases, I argue that there is a presumption that the employee is telling the truth about how much he earned. This means that it is up to the insurance company or the employer to demonstrate that the claimed average weekly wage is different from what the employee claims.

Taxes - You do not need to have filed a state or federal tax return in order to obtain workers’ compensation benefits. An exception is for tips. Unless you listed your tips on your tax return, they will not be included in the calculation of your average weekly wage.

Concurrent Employment - Some employees were working at more than one job at the time they were injured. You are entitled to have your average weekly wage based upon your earnings from all of the jobs you held so long as those other employers had workers’ compensation insurance.

Benefits - In general, fringe benefits such as health insurance, pensions, day care, or education and training programs provided by employers are not included in the calculation of the average weekly wage. One exception is for union workers who get hurt while working on an entirely union public works project. In such cases, "employer payments into health and welfare plans, pension plans and supplemental unemployment benefits . . . " are included in determining an employee’s average weekly wage. See M.G.L. c. 148, §§26 and 27 and McCarty’s Case, 445 Mass. 361 (2005).