TITLE 28
Labor and Labor Relations

CHAPTER 28-33
Workers' Compensation – Benefits

SECTION 28-33-20


§ 28-33-20 Computation of earnings.

(a) For the purposes of this chapter, the average weekly wage shall be ascertained as follows:

(1) For full-time or regular employees, by dividing the gross wages, inclusive of overtime pay; provided, that bonuses and overtime shall be averaged over 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 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, the worker was actually employed by that employer, including any paid vacation time. In making this computation, absence for seven (7) consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than the beginning of a calendar week, the calendar week and wages earned during that week shall be excluded in making the above computation. When the employment previous to injury 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 to the average weekly wage prevailing in the same or similar employment at the time of injury except that when an employer has agreed to pay a certain hourly wage to the worker, then the hourly wage so agreed upon shall be the hourly wage for the injured worker and his or her average weekly wage shall be computed by multiplying that hourly wage by the number of weekly hours scheduled for full-time work by full-time employees regularly employed by the employer. Where the injured employee has worked for more than one employer during the thirteen (13) weeks immediately preceding his or her injury, his or her average weekly wages shall be calculated upon the basis of wages earned from all those employers in the period involved by totaling the gross earnings from all the employers and dividing by the number of weeks in which he or she was actually employed by any employer, in the same manner as if the employee had worked for a single employer and, except in the case of apportionment of liability among successive employers as provided in § 28-34-8, the employer in whose employ the injury was sustained shall be liable for all benefits provided by chapters 29 – 38 of this title. A schedule of the computation of the average weekly wage in compliance with this section shall be a 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 cover any special expense incurred by the employee by the nature of his or her employment, 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 injury or received compensation for a previous injury shall not preclude compensation for a later injury or for death; but in determining the compensation for the later injury or death, his or her average weekly wages shall be any sum that will reasonably represent his or her weekly earning capacity at the time of the later 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, the provisions of this section. In computing the average weekly wages earned subsequent to the first injury, the time worked and wages earned prior to that injury shall be excluded.

(2) In occupations that are seasonal, the "average weekly wage" means one-fifty second ( 1/52) of the total wages which the employee has earned during the twelve (12) calendar months immediately preceding the injury.

(3) "Wages of an employee working part-time" means the gross wages earned during the number of weeks so employed, or of weeks in which the employee worked, up to a maximum of twenty-six (26) calendar weeks immediately preceding the date of injury, divided by the number of weeks employed, or by twenty-six (26), as the case may be. "Part-time" means working by custom and practice under the verbal or written employment contract in force at the time of the injury, where the employee agrees to work or is expected to work on a regular basis less than twenty (20) hours per week. Wages shall be calculated as follows:

(i) For part-time employees, by dividing the gross wages, inclusive of overtime pay; provided, any bonuses and overtime shall be averaged over 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 in whose service he or she is injured during the twenty-six (26) consecutive 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, the worker was actually employed by that employer, including any paid vacation time. In making this computation, absence for seven (7) consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than the beginning of a calendar week, the calendar week and wages earned during that week shall be excluded in making the above computation. When the employment previous to injury 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 average weekly wage prevailing in the same or similar employment at the time of injury except that when an employer has agreed to pay a certain hourly wage to the worker, then the hourly wage so agreed upon shall be the hourly wage for the injured worker and his or her average weekly wage shall be computed by multiplying that hourly wage by the number of weekly hours agreed upon in the contract of hire.

(ii) In the event the injured employee had concurrent employment with one or more additional employers at the time of injury, the average weekly wage shall be calculated for the twenty-six (26) calendar weeks preceding the week in which the employee was injured upon the basis of wages earned from all those employers in the period involved by totaling the gross earnings from all the employers and dividing by the number of usable weeks the employee actually was employed by that employer, in the same manner as if the employee had worked for a single employer; provided, in the case of apportionment of liability among successive employers pursuant to § 28-34-8, the employer in whose employ the injury was sustained shall be liable for all benefits provided by chapters 29 – 38 of this title. In the case that the injured employee's other employer is a full-time employer, the average weekly wage shall be calculated according to subdivision (1) for the thirteen (13) calendar weeks immediately preceding the week in which he or she was injured. Calculations for part-time employment shall be calculated separately for the twenty-six (26) calendar weeks immediately preceding the week of injury. A schedule of computation of the average weekly wage in compliance with this section shall be a necessary part of the memorandum of agreement required by § 28-35-1.

(iii) Where the employer is accustomed to paying the employee a sum to cover any special expense incurred by the employee by the nature of the 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 injury or received compensation for a previous injury shall not preclude compensation for a later injury or for death. In determining the compensation for the later injury or death, the average weekly wage shall be any sum that will reasonably represent the employee's earning capacity at the time of the later injury, in the employment in which he or she was working at that time, and shall be derived according to, and subject to, the limitations of the provisions of this section; provided, that in computing the average weekly wages earned subsequent to the first injury, the time worked and wages earned prior to that injury shall be excluded.

History of Section.
(P.L. 1912, ch. 831, art. 2, § 13; P.L. 1915, ch. 1268, § 3; G.L. 1923, ch. 92, art. 2, § 13; P.L. 1936, ch. 2290, § 8; G.L. 1938, ch. 300, art. 2, § 13; P.L. 1941, ch. 1057, § 1; P.L. 1954, ch. 3297, § 1; G.L. 1956, § 28-33-20; P.L. 1969, ch. 145, § 1; P.L. 1982, ch. 32, art. 1, § 6; P.L. 1986, ch. 228, § 1; P.L. 1986, ch. 507, § 7; P.L. 1990, ch. 332, art. 1, § 3; P.L. 1992, ch. 31, § 5; P.L. 1993, ch. 474, § 1; P.L. 1998, ch. 105, § 2; P.L. 1998, ch. 404, § 2.)