Maryland Workers' Comp Case Helps Clarify When to Measure State Average Weekly Wage

March 10, 2011 (Press-News.org) Maryland Workers' Comp Case Helps Clarify When to Measure State Average Weekly Wage

After being injured on the job, one worker began a legal odyssey spanning several years. The legal battle, however, was not a matter of whether or not the worker was injured -- the Workers' Compensation Commission determined that the worker was, awarding the worker total disability and permanent partial disability benefits for greater than 75 weeks but less than 250 weeks -- but rather a fight regarding when benefits should be measured.

According to the Maryland Labor and Employment statute addressing permanent partial disability for greater than 75 weeks but less than 250 weeks, the compensation awarded to the injured shall be equal to two-thirds of the average weekly wage (AWW) of the employee, but not greater than one-third of the State average weekly wage (SAWW).

SAWW is measured yearly by the Department of Labor, Licensing, and Regulation. The SAWW is the average wage on July 1 of that year.

The issue of the case, which will impact all injured workers in Maryland seeking workers' compensation, was at what point in time the SAWW was measured for purposes of determining compensation. Should the SAWW be measured on the date the injury occurred or on the date compensation is awarded?

Injured Worker's Argument

The injured worker advocated that the SAWW used to calculate the permanent partial disability award should be measured on the date which he became entitled to workers' compensation benefits. He argued that the statute was ambiguous because it does not "expressly state which year's" SAWW is to be used. The injured worker further argued that because of the ambiguity, the matter should be resolved in his favor.

By using the SAWW from the date that the injured worker is determined to be entitled to benefits, which is usually later in time than the date of injury, the worker will most likely receive a higher amount of compensation while injured.

The Court's Ruling

The Maryland Court of Appeals -- Sanchez v. Potomac Abatement, Inc., 417 Md. 76, 8 A.3d 737 -- disagreed with injured worker, however, holding that the SAWW on the date of the injury was to be used in calculating compensation benefits.

Citing several prior cases that previously addressed this issue, the Maryland Court of Appeals concluded that the issue had already been settled.

Further, the appellate court noted that the Maryland legislature had agreed with the Maryland Workers' Compensation Commission's interpretation of the workers' compensation statute. The court interpreted the legislature's acquiescence to mean that the Maryland Workers' Compensation Commission was "operating in accord with the legislative will."

Average Weekly Wage

Along with determining which year's SAWW should be used in the calculation, the average weekly wage needs to be measured in order to determine benefits.

There are several factors to consider when measuring a worker's AWW. The AWW is calculated using the average salary of the injured worker for the 14 weeks prior to the accident. The Annotated Code of Maryland and the Code of Maryland Regulations set out what factors are included in the calculation of the AWW, including:
-Gross weekly wages
-Any overtime the worker was receiving
-Vacation wages paid
-Tips earned on the job

Also included in the AWW calculation are the perks that are given to the injured worker by the employer -- perks such as monies for housing, lodging, rent and meals. The statute also includes a provision to include "other similar advantages" as well.

While the decision did not change Maryland's current workers' compensation law, the court's decision still impacts all future injured workers. By reaffirming prior law, the court once again reinforced the Maryland Workers' Compensation Commission's interpretation of when to measure SAWW in determining compensation for a worker who suffers an accident injury.

Workers' compensation is a complicated area of the law. Speak with an experienced workers' compensation attorney if you have been injured on the job.

Article provided by Cohen, Snyder, Eisenberg & Katzenberg, P.A.
Visit us at www.coseklaw.com