When an employee suffers a work related injury and cannot immediately return to work because of serious injuries sustained, one of the first issues that requires attention is the calculation of the injured worker’s average weekly wage so that the benefits that are due are calculated and paid properly. In Nebraska, average weekly wage for purposes of workers’ compensation benefits is typically calculated by dividing the 26 weeks, or 6 months, of gross wages immediately preceding the accident by the number of weeks worked. The Nebraska workers’ compensation wage statute, Neb. Rev. Stat. 48-126, states:
Wherever in the Nebraska Workers’ Compensation Act the term wages is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. It shall not include gratuities received from the employer or others, nor shall it include board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring, except that if the workers’ compensation insurer shall have collected a premium based upon the value of such board, lodging, and similar advantages, then the value thereof shall become a part of the basis of determining compensation benefits. In occupations involving seasonal employment or employment dependent upon the weather, the employee’s weekly wages shall be taken to be one-fiftieth of the total wages which he or she has earned from all occupations during the year immediately preceding the accident, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not fairly represent the earnings of the employee. In such a case, the period for calculation shall be extended so far as to give a basis for the fair ascertainment of his or her average weekly earnings. In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour or by the output of the employee, his or her weekly wages shall be taken to be his or her average weekly income for the period of time ordinarily constituting his or her week’s work, and using as the basis of calculation his or her earnings during as much of the preceding six months as he or she worked for the same employer, except as provided in sections 48-121 and 48-122. The calculation shall also be made with reference to the average earnings for a working day of ordinary length and exclusive of earnings from overtime, except that if the insurance company’s policy of insurance provides for the collection of a premium based upon such overtime, then such overtime shall become a part of the basis of determining compensation benefits.
However, every case is different and calculation of average weekly wage can be complicated by a number of factors, such as:
• If the injured worker is a seasonal employee;
• If the injured worker is paid based on production or on commission versus based on an hourly or daily wage;
• If the injured worker is a part-time employee, or in the alternative, works a lot of overtime hours;
• If the injured worker took weeks off for vacation, holidays, or sick leave;
• If the injured worker was involved in training at a different wage rate prior to the accident;
• If the injured worker was employed only a matter of days or hours before the accident occurred; and,
• If the injured worker received bonuses, payment via non-monetary means, such as free rent or a free cell phone.
The law can be complicated. Obtaining the advice of an experienced workers’ compensation attorney at the outset of a work injury claim to avoid mistakes early and ensure benefits are paid properly and timely is recommended. Our attorneys are available, responsive and have decades of individual and combined experience navigating the potential pitfalls of wage calculation and are here to help.
