The Department of Industrial Accidents Reviewing Board recently filed a decision addressing the issue of whether income earned from a second job at the United States Postal Service (USPS) may be included in the calculation of the employee’s average weekly wage for purposes of workers’ compensation benefits.
The employee worked full time at USPS, part time at Lowe’s, and part time as a security guard. He injured his neck while unloading appliances from a truck at Lowe’s. Lowe’s, a self-insured employer, accepted responsibility for the injury and paid the employee workers’ compensation benefits. The employee filed a claim seeking recalculation of his average weekly wage to include wages earned at USPS for the year prior to his injury, thereby increasing his benefits.
The Massachusetts Workers’ Compensation Act (Act) provides that total wages earned in the concurrent service of insured employers or self-insurers are to be used in calculating the average weekly wage. USPS, however, is not an “insured employer” for purposes of the Act because it does not participate in the Massachusetts workers’ compensation system. It is covered by the Federal Employees’ Compensation Act.
The employee argued that recent case law had expanded the definition to include both insured and uninsured Massachusetts employers in Sellers’s Case, 452 Mass. 804 (2008), and out-of-state wages earned after an employee returned to work for purposes of § 35B in Wadsworth’s Case, 461 Mass. 675 (2012). The Reviewing Board disagreed, concluding that the court’s reasoning in Sellers and Wadsworth did not override the clear statutory language that limited concurrent wages to those earned by employees who are required to be insured under the Act. The Reviewing Board differentiated Sellers, explaining that an illegally uninsured Massachusetts employer is not the same as a federally insured out-of-state employer that is not required to pay into the Massachusetts workers’ compensation trust fund. The Sellers court construed the statutory language to give effect to the purpose of the Act. The Reviewing Board also stated that the reasoning in Wadsworth applied to § 35B cases is inapplicable to concurrent wage cases under § 1(1).
In denying the employee’s request to include his USPS wages, the Reviewing Board explained that the employee’s interpretation would open the door to unforeseeable, unfunded liability, as well as premium increases for Massachusetts employers insured by the Act. Finally, the Reviewing Board held that the plain language of the statute does not allow for the inclusion of wages earned from federal employers that are covered under a different workers’ compensation system.
If you have suffered a mental or physical injury on the job, you may be entitled to compensation for your injury and lost wages. The Massachusetts attorneys at Pulgini & Norton provide legal guidance and representation for clients pursuing workers’ compensation benefits. To discuss your claim with one of our dedicated attorneys, contact our office at (781) 843-2200 or online and schedule a consultation.
More Blog Posts:
The Importance of Understanding the Exclusivity of Massachusetts Workers’ Compensation Benefits, Massachusetts Workers’ Compensation Lawyer Blog, published January 22, 2015
Back Injuries and Workers’ Compensation Claims under Massachusetts Law, Massachusetts Workers’ Compensation Lawyer Blog, published February 11, 2015