281-A:15 Computing Average Weekly Wages; After-Tax Earnings. –
I. Except as provided in paragraphs II and III of this section and of RSA 281-A:32 and subject to RSA 281-A:28, 281-A:28-a and RSA 281-A:31-a, but including those persons under RSA 281-A:15, II-a, an average weekly wage shall be computed by using the method in subparagraph (a) or (b), or (c) that yields the result more favorable to the injured employee:
(a) By dividing the gross earnings of the injured employee in the service of the same employer during the preceding 26 weeks by that number of weeks; or
(b) By dividing the gross earnings of the injured employee in the service of the same employer during a period exceeding 26 weeks but not exceeding 52 weeks by the appropriate number of weeks.
(c) If, however, by reason of the shortness of time during which the employee has been in the employment of the employer or because of the nature or term of the employment, it is inequitable to compute the average weekly wage using the method in subparagraph (a) or (b), regard may be had to the rate of pay designated in the injured employee's agreement of employment or to the gross earnings of persons in the same grade employed at the same work by the same employer or, if there are no persons so employed, by persons of the same grade employed in the same class of employment in the same locality.
II. Except as provided in paragraph III, the average weekly wage for any of the following injured while on duty shall be deemed to be the average weekly wage that entitles such employee to 100 percent of the state's average weekly wage as a maximum benefit:
(a) Any call firefighter or special police officer, volunteer or auxiliary member of a fire or police department or ambulance or rescue service of the state or any of its political subdivisions, whether paid or not paid.
(b) Any paid or not paid employee as defined by RSA 281-A:2, VII(a)(4) or (5).
(c) Any member of the general court injured in the performance of the duties as such a member.
(d) Any person who is not employed and who is acting as an agent to the department of health and human services or the department of safety as described in RSA 281-A:2, VII(a)(6).
II-a. Any person who is employed and who is on leave from such employment and who is acting as an agent to the department of health and human services or the department of safety as described in RSA 281-A:2, VII(a)(6) shall have his or her average weekly wage computed under paragraph I of this section.
III. Where the employee is employed as of the date of injury concurrently by 2 or more employers subject to this chapter and is disabled from any such employment, "average weekly wages" shall be computed on the basis of the weekly wages received by the employee from all such employers at the time of the injury. Notwithstanding paragraph II, if the computation of average weekly wage under this paragraph is more favorable to the injured employee, he shall be entitled to such amount. The employer in whose employment the employee was injured shall be liable in the first instance for payment of all benefits. Any additional compensation resulting from the increase in average weekly wages due to the employee's concurrent employment shall be reimbursed by the special fund created under RSA 281-A:55. The employer in whose employment the employee was injured shall be liable for all payments under RSA 281-A:23 and 25.
IV. For the purposes of calculating benefits under this chapter, "after-tax earnings" means the gross earnings of the employee determined under this section, reduced by the amount which would have been paid under the Federal Insurance Contributions Act, 26 U.S.C. sections 3101-3126 and income tax withholding, calculated on an annual basis using as the number of exemptions the lowest number of exemptions actually claimed by the employee during the 26-week period immediately preceding the date of injury, without excess itemized deductions.
V. The average weekly wage for national guard members shall be computed in accordance with this section, except that national guard members who are unemployed when called to state duty shall be compensated based upon their national guard rate of pay calculated in accordance with RSA 110-B:37.