Maryland workers’ compensation: What is average weekly wage?

AWW is not always clearly defined and takes into account factors other than actual hours worked.

Under Maryland law, for most workers who have been injured on the job or contracted industrial diseases, monthly workers' compensation payments designed to provide support equal two-thirds of "average weekly wage." While that sounds straightforward and east to calculate, there can be complicated, difficult issues that come up when AWW is calculated in a workers' compensation claim.

On March 1, 2018, the Court of Special Appeals of Maryland issued an important decision that provides legal guidance on this question.

Richard Beavers Construction, Inc., v. Wagstaff

Dexter Wagstaff was a construction worker who accepted work as a lift operator for Richard Beavers Construction, Inc., also called RBCI. He signed onto the job expecting to work full time, meaning 40 hours total per week during regular business hours. The employer told him not to come to work if it was snowing or raining since they could not work outside safely.

According to the court opinion, Wagstaff started work in February 2013 at an hourly rate of $18.95. For the first six weeks on the job, he missed a lot of work because of wet weather, averaging 16.74 hours per week. On April 1, he had a horrific, 18-foot fall through a warehouse roof on the job site, landing on his face. He sustained multiple severe injuries, including a skull fracture and fractures to four facial bones.

The legal issue was whether during his period of temporary total disability he should be paid an AWW of $317.44 based on actual hours worked (reduced because of weather) or of $758 based on a full-time week. The Maryland Workers' Compensation Commission after a hearing decided that AWW should use the full-time figure. This finding was confirmed by the Circuit Court for Talbot County and the employer and its insurer appealed again.

Interpretation of the workers' compensation laws

On appeal again, the Court of Special Appeals said that it had to look at the "ordinary meaning" of the statute in light of the requirement that workers' compensation laws are to be viewed as "remedial" and interpreted "as liberally in favor of the injured employees as its provisions will permit in order to effectuate its benevolent purposes." Any "uncertainty" about the meaning of the law should be interpreted in favor of the injured claimant.

Considering this, the court found that the law contemplates not only looking at actual past earnings, but also at earnings capacity and the schedule the employer contemplated when it hired the claimant - here, full time work. The six weeks of reduced hours because of weather were not representative of what he "would expect to earn in a normal week."

To use the actual hours worked in this case would have been a "windfall" to the employer.

Therefore, the correct AWW was based on a 40-hour week, the higher figure.

Based in Annapolis, the lawyers at Joel L. Katz, L.L.C., represent injured or ill workers in their workers' compensation claims across the state.