Wisconsin: Average Weekly Wage for 17-Year-Old Killed in Work-Related Injury Should Be Based on Probable Earnings Had He Reached Age of 27

Death benefits to be paid following the work-related death of a 17-year-old farm worker should be calculated using the presumption provided for in Wis. Stat. § 102.11(1)(g), held a Wisconsin court. That statute provides that where the employee is under 27 years of age at the time of death, his or her average weekly earnings should be computed based upon what the employee “would probably earn after attaining the age of 27 years.” The farm worker had only worked two weeks for the employer. He had not provided documentation as to his immigration status and it appeared he could not legally work in the United States. The employer contended that since the worker could not be employed legally here, his earnings in Mexico, not projected earnings here, should be used to compute the AWW. The insurer had the burden of showing that some other wage, other than the presumptive wage at 27 years, was appropriate. The court found that the insurer had failed to present credible evidence to rebut the presumption.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

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See American Family Mut. Ins. Co. v. Labor and Indus. Rev. Comm'n, 2015 Wisc. App. LEXIS 156 (Feb. 26, 2015) [2015 Wisc. App. LEXIS 156 (Feb. 26, 2015)]

See generally Larson’s Workers’ Compensation Law, § 93.01 [93.01]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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