Average Monthly Wage
By Dennis Kurth, Attorney
Snow, Carpio & Weekley
The “average monthly wage” (AMW) is a critically important concept in workers’ compensation law as it is the basis for calculating all compensation due to the injured worker for the subject injury for the rest of his/her life. It is officially set by the Industrial Commission shortly after time loss begins to accrue and when the carrier issues a preliminary AMW figure which the Commission reviews. It carries a ninety (90) day statute of limitations for protest by claimants.
The presumptive AMW, under the statute and case law, is whatever the claimant earned in gross wages in the thirty days before the injury. The exception is when that figure does not accurately reflect the claimant’s earning capacity.
In such cases the Commission may use an “expanded wage base “ and look at a greater period of wages pre-injury. In cases where the claimant did not work a full month before the injury, the Commission might request from the employer and carrier, the wages of two other similar employees to use as a basis for setting the claimant’s AMW. It might also just extrapolate an AMW based on the hourly rate and number of hours per week the claimant was hired to work.
AMW setting can often be problematic when the claimant received a raise shortly before the injury, or enjoyed a particularly lucrative month of enhanced earnings not destined to be repeated or went from being a low paid entry-level trainee to a full-time responsible employee in the month before the injury. In such cases, use of an expanded wage base or extrapolation might be called for.
AMW settings should be closely scrutinized for accuracy by claimants and their representatives as soon as the carrier issues their notice setting the preliminary AMW. Carriers, often with the misguided encouragement of the Industrial Commission, sometimes use an expanded wage base in situations where it is not called for to the great detriment of the claimant.
In the initial meeting with the claimant, the attorney should look for the status of the AMW setting and review the thirty-day wage reported by the carrier to the Commission. If necessary, the claimant should be asked to provide pay stubs for the sixty (60) days or so before the injury. If the claimant does not have such information in the initial meeting, a quick phone call to ICA claims can produce the needed information promptly.
Setting the AMW is one of the few instances where the Commission actually issues an award which either side can protest. Presumably many claimants, trust the Commission, a state agency, to look out for them and set the AMW fairly so that they are compensated fairly based on what they would have earned had the injury not occurred. Unfortunately, that is not always the case, and claimants are best advised to be pro-active on their own behalf and seek an opinion by an experienced workers’ compensation attorney.
If you or someone you know has been injured at work or suffers from a medical condition or injury that will keep them from working for 12 months or longer, contact Snow, Carpio & Weekley at 855-325-4781 for a free consultation statewide. You may also learn more about us by visiting our website at www.workinjuryaz.com.