Decision  Robert Bembery v. MBTA

Date:	10/01/2003
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 036538-00
Location:	Boston

• Employee: Robert Bembery
• Employer: MBTA
• Self Insurer: MBTA

LEVINE, J. The self-insurer appeals from a decision in which an administrative judge awarded the employee benefits for a work injury, based on an average weekly wage that reflected the employee’s recent promotion, not his fifty-two weeks of earnings prior to his injury. See G.L. c. 152, § 1(1).¹  As the result obtained was consistent with Morris’s Case, 354 Mass. 420 (1968), we affirm the decision.

¹ The relevant part of that section states as follows:

(1) "Average weekly wages", the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two . . . . Where, by reason of the shortness of the time during which the employee has been in the employment of his employer or the nature or terms of the employment, it is impractical to compute the average weekly wages, as above defined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned by a person in the same grade employed at the same work by the same employer . . . .