Workers' CompensationMassachusetts Appellate Court Issues Ruling Regarding Seasonal Wages in Case Involving Average Weekly Wage Dispute

October 16, 20190

If you are awarded benefits in a Boston workers’ compensation case, the court will calculate your average weekly wage to determine the amount of benefits that you should receive. This figure can be calculated in a number of ways. When an employee has multiple forms of employment including seasonal employment, the calculation can become incredibly difficult and even confusing. Our lead attorney Michael O. Smith has substantial experience assisting individuals with ensuring that they receive the fair outcome that they deserve after a work accident.

Recently, an appellate court considered an appeal involving an employee who was reportedly injured while working as a seasonal employee for a painting company. The lower court awarded the employee $301.37 in weekly benefit payments based on an average weekly wage determination of $502.28. The employee also worked as a seasonal worker at a restaurant located in a hotel. He worked at the restaurant roughly 15 hours per week and earned $226.25 each week.

The only issue before the court on appeal was whether the lower court reached the appropriate conclusion regarding the average weekly wage. The parties had stipulated before the hearing on wages that the employee should be considered a concurrent employee for his work that he performed at the restaurant and as a painter. Based on the worker’s testimony that he worked seasonally as a painter and at the restaurant, the judge determined that the average weekly wage should be calculated by dividing his total earnings over the prior 52-week period in lieu of the actual number of hours that the employee worked.


On review, the worker also contended that the insurance company had not brought up any issues regarding seasonal wage calculations during the lower court proceedings and that as a result the worker was not given a fair opportunity to address this contention.

The appellate court did not accept this argument, finding that the seasonal employment issue had been discussed repeatedly throughout the lower court proceedings. The employee didn’t make any objections about this issue during the hearing, for example, or object to comments that indicated that his jobs were seasonal in nature. Also, the employee had an opportunity to cross-examine the persons who testified at the hearing about his employment. Based on this, the appellate court accepted the lower court’s assessment regarding the seasonal nature of the employee’s work as a painter.

The appellate court did agree with the worker’s argument that the lower court made an unlawful change to the stipulation that the parties entered before the hearing, however. It remanded the case for additional proceedings to determine the proper average weekly wage that the employee earned at the restaurant.

If you were hurt on the job and believe that you may be entitled to benefits it is critical to contact an experienced Boston workers’ compensation attorney who can help you determine whether you are being treated fairly. Our lead attorney provides a free consultation to discuss your situation and whether he can assist you in seeking benefits and medical expenses reimbursement payments. To get started, contact us today at 617-263-0060 or contact us online.

COVID-19 Notice – We remain here for you and can answer any questions or concerns you may have. Learn More »