§ 28-33-20 - Computation of earnings.
SECTION 28-33-20
§ 28-33-20 Computation of earnings. –(a) For the purposes of this chapter, the average weekly wage shall beascertained as follows:
(1) For full-time or regular employees, by dividing the grosswages, inclusive of overtime pay; provided, that bonuses and overtime shall beaveraged over the length of employment but not in excess of the precedingfifty-two (52) week period, earned by the injured worker in employment by theemployer in whose service he or she is injured during the thirteen (13)calendar weeks immediately preceding the week in which he or she was injured,by the number of calendar weeks during which, or any portion of which, theworker was actually employed by that employer, including any paid vacationtime. In making this computation, absence for seven (7) consecutive calendardays, although not in the same calendar week, shall be considered as absencefor a calendar week. When the employment commenced otherwise than the beginningof a calendar week, the calendar week and wages earned during that week shallbe excluded in making the above computation. When the employment previous toinjury as provided above is computed to be less than a net period of two (2)calendar weeks, his or her weekly wage shall be considered to be equivalent tothe average weekly wage prevailing in the same or similar employment at thetime of injury except that when an employer has agreed to pay a certain hourlywage to the worker, then the hourly wage so agreed upon shall be the hourlywage for the injured worker and his or her average weekly wage shall becomputed by multiplying that hourly wage by the number of weekly hoursscheduled for full-time work by full-time employees regularly employed by theemployer. Where the injured employee has worked for more than one employerduring the thirteen (13) weeks immediately preceding his or her injury, his orher average weekly wages shall be calculated upon the basis of wages earnedfrom all those employers in the period involved by totaling the gross earningsfrom all the employers and dividing by the number of weeks in which he or shewas actually employed by any employer, in the same manner as if the employeehad worked for a single employer and, except in the case of apportionment ofliability among successive employers as provided in § 28-34-8, theemployer in whose employ the injury was sustained shall be liable for allbenefits provided by chapters 29 – 38 of this title. A schedule of thecomputation of the average weekly wage in compliance with this section shall bea necessary part of the memorandum of agreement required by § 28-35-1.Where the employer has been accustomed to paying the employee a sum to coverany special expense incurred by the employee by the nature of his or heremployment, the sum paid shall not be reckoned as part of the employee's wages,earnings, or salary. The fact that an employee has suffered a previous injuryor received compensation for a previous injury shall not preclude compensationfor a later injury or for death; but in determining the compensation for thelater injury or death, his or her average weekly wages shall be any sum thatwill reasonably represent his or her weekly earning capacity at the time of thelater injury, in the employment in which he or she was working at that time,and shall be arrived at according to, and subject to the limitations of, theprovisions of this section. In computing the average weekly wages earnedsubsequent to the first injury, the time worked and wages earned prior to thatinjury shall be excluded.
(2) In occupations that are seasonal, the "average weeklywage" means one-fifty second ( 1/52) of the total wages which the employee hasearned during the twelve (12) calendar months immediately preceding the injury.
(3) "Wages of an employee working part-time" means the grosswages earned during the number of weeks so employed, or of weeks in which theemployee worked, up to a maximum of twenty-six (26) calendar weeks immediatelypreceding the date of injury, divided by the number of weeks employed, or bytwenty-six (26), as the case may be. "Part-time" means working by custom andpractice under the verbal or written employment contract in force at the timeof the injury, where the employee agrees to work or is expected to work on aregular basis less than twenty (20) hours per week. Wages shall be calculatedas follows:
(i) For part-time employees, by dividing the gross wages,inclusive of overtime pay; provided, any bonuses and overtime shall be averagedover the length of employment but not in excess of the preceding fifty-two (52)week period, earned by the injured worker in employment by the employer inwhose service he or she is injured during the twenty-six (26) consecutivecalendar weeks immediately preceding the week in which he or she was injured,by the number of calendar weeks during which, or any portion of which, theworker was actually employed by that employer, including any paid vacationtime. In making this computation, absence for seven (7) consecutive calendardays, although not in the same calendar week, shall be considered as absencefor a calendar week. When the employment commenced otherwise than the beginningof a calendar week, the calendar week and wages earned during that week shallbe excluded in making the above computation. When the employment previous toinjury as provided above is computed to be less than a net period of two (2)weeks, the weekly wage shall be considered to be equivalent to the averageweekly wage prevailing in the same or similar employment at the time of injuryexcept that when an employer has agreed to pay a certain hourly wage to theworker, then the hourly wage so agreed upon shall be the hourly wage for theinjured worker and his or her average weekly wage shall be computed bymultiplying that hourly wage by the number of weekly hours agreed upon in thecontract of hire.
(ii) In the event the injured employee had concurrentemployment with one or more additional employers at the time of injury, theaverage weekly wage shall be calculated for the twenty-six (26) calendar weekspreceding the week in which the employee was injured upon the basis of wagesearned from all those employers in the period involved by totaling the grossearnings from all the employers and dividing by the number of usable weeks theemployee actually was employed by that employer, in the same manner as if theemployee had worked for a single employer; provided, in the case ofapportionment of liability among successive employers pursuant to §28-34-8, the employer in whose employ the injury was sustained shall be liablefor all benefits provided by chapters 29 – 38 of this title. In the casethat the injured employee's other employer is a full-time employer, the averageweekly wage shall be calculated according to subdivision (1) for the thirteen(13) calendar weeks immediately preceding the week in which he or she wasinjured. Calculations for part-time employment shall be calculated separatelyfor the twenty-six (26) calendar weeks immediately preceding the week ofinjury. A schedule of computation of the average weekly wage in compliance withthis section shall be a necessary part of the memorandum of agreement requiredby § 28-35-1.
(iii) Where the employer is accustomed to paying the employeea sum to cover any special expense incurred by the employee by the nature ofthe employment, that sum shall not be reckoned as part of the employee's wages,earnings, or salary. The fact that an employee has suffered a previous injuryor received compensation for a previous injury shall not preclude compensationfor a later injury or for death. In determining the compensation for the laterinjury or death, the average weekly wage shall be any sum that will reasonablyrepresent the employee's earning capacity at the time of the later injury, inthe employment in which he or she was working at that time, and shall bederived according to, and subject to, the limitations of the provisions of thissection; provided, that in computing the average weekly wages earned subsequentto the first injury, the time worked and wages earned prior to that injuryshall be excluded.