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Plumbers' argument for alternative AWW calculation fails to pass muster
In New Hampshire, the calculation of a worker's average weekly wage is determined by dividing pre-tax "gross earnings" over a period of 26 to 52 weeks by that number of weeks.
Case name: Appeal of Gagnon, No. 2008-424 (N.H. 02/20/09). Ruling: The New Hampshire Supreme Court held that a worker's average weekly wage is calculated using pre-tax pay as opposed to total earning capacity and does not include hourly union benefits.
Summary: Two plumbers who were receiving disability benefits appealed the compensation appeals board's calculation of their average weekly wage. The claimants argued that the average weekly wage should be based upon total earning capacity rather than pre-tax wages, and that the employer's contributions to their union funds should be included in the wages calculation. The claimants argued that because the purpose of the workers' compensation law is to compensate employees who have lost earning capacity, the resulting benefits should encompass all lost earning capacity. The court determined that "gross earnings" as used in the New Hampshire workers' compensation statute was not the same as earning capacity. It reasoned that in this context, earning capacity only pertains to a claimant's eligibility for benefits, but the calculation of those benefits is based on the claimant's gross earnings. The court further explained the concepts are distinct and separate. April 2, 2009 Copyright 2009© LRP Publications |
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