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Every type of benefit in the workers’ compensation system – with the exception of medical treatment – depends on how much the injured worker was earning at the time of the accident. Other factors are also important, like the extent of the disability and the date of the accident, because the date of accident controls the maximum benefit rate and the rate usually increases with greater disability and decreases with lesser disability. But the starting point is always the same: wages.

To decide what is called the “average weekly wage,” the Board does not simply look at the workers’ most recent pay stub or their W-2 form from the previous year. Instead, the Workers’ Compensation Law requires the Board to look at a number of things. These include how many days a week the person usually worked, whether they were with the same employer for a “substantial part” of the year before the accident, how many days they worked in the year before the accident, their total earnings, and whether they had any other jobs (called “concurrent employment”) or were under 25 years old at the time of the accident.

The law then applies a formula to these factors in order to determine the average weekly wage. This formula is designed to help the injured worker by arriving at a fair estimate of their wage-earning capacity in a full work-week on their usual schedule and at their usual pay scale – even if they did not actually earn that much in the previous year.

It is very important for an injured worker to obtain a proper calculation of their average weekly wage in order to be sure to receive proper benefits. For example, in one recent case the insurer argued that the worker’s W-2 earnings showed that he only averaged $565 per week, which would have resulted in a maximum weekly benefit rate of $376.67. Instead, we were able to establish an average weekly wage of $1,950, resulting in a maximum weekly benefit rate of $934.11 – almost three times greater.


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