Proper Calculation of Average Weekly Wage - Wilkes-Barre, Scranton Personal Injury Lawyers

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Proper Calculation of Average Weekly Wage

During this tough economy, many people have taken on second and third jobs in an effort to make ends meet. It is very important to understand that when you get hurt on one of those jobs, the employer through its workers compensation in responsible to compensate you for all the wages you are losing and not just those wages for the job on which you were injured.

As you can imagine, the law on this issue is very straight forward, but the way that insurance carriers follow the law is not. Many times the insurance company will not just begin to pay you for all of your lost earnings. In fact, the burden falls on the injured worker to get all the information together to prove what wages are actually owed.

Section 309 of the Workers Compensation Act specifically states, in pertinent part, wherever the term wages is used it shall be construed to mean the average weekly wages of the employee, ascertained as follows:

where the employee is working under concurrent contracts with two or more employers, his wages from all such employers shall be considered as if earned from the employer liable for compensation.

77 P.S. § 582. Further, the Commonwealth Court of Pennsylvania has interpreted this statutory language to state that even if the injured worker had been temporarily laid off from concurrent employment, he may still be able to collect workers compensation wages for those earnings if he can establish that is was not a permanent stoppage of work, but merely a temporary layoff. Triangle Building Center v. WCAB (Linch), 746 A.2d 1108 (2000). The theory is that the wages are supposed to reflect a reasonable picture of the injured worker s pre-injury earning experience for a projection of the potential future wages.

This aspect of the law can be very important for those people that are member of trade unions. Many times, these people will take winter jobs as maintenance workers or association property managers while waiting to be called back for work. It can be this lower paying job that causes the injury. However, if properly established, the injured worker may be able to obtain workers compensation wages for the higher union wages he was earning and can no longer earn because he is hurt.

The Pennsylvania Supreme Court, in Triangle, analyzed the following factors for this wage calculation: (1) the relationship that the employee had with the prior employer (i.e., had the employee been laid off in the past and returned to work) (2) had the employer not terminated the employee during the layoff period, and (3) had the employee immediately returned to the employer when work became available.

Thus, it is very important to talk to a lawyer as soon as you get hurt. The insurance company will not automatically look for other wages it may have to pay you. It becomes the injured worker s responsibility to search out all of his own benefits.

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