Determining the Proper Average Weekly Wage Calculations to Use 

This claim arose from an occupational shoulder injury claim made by a violist in December of 2013.  The claim was accepted and the only contested issue was the proper calculation for determining Plaintiff’s average weekly wage.  Plaintiff worked 36 of the 52 weeks prior to her injury and listed her average weekly wage on the Form 18 as “$760.00+.”  The deputy commissioner and Full Commission calculated Plaintiff’s average weekly wage using the fifth method provided in § 97-2(5).  Plaintiff appealed the decision and asserted the Commission should have employed to second method set forth in the statute.

Did the Commission apply the correct method for calculating Plaintiff’s average weekly wage?

In this case, Plaintiff sustained an accepted occupational shoulder condition.  Plaintiff was employed by Defendant-Employer as a violist.  Each contract specified the number of weeks in the year her season would run.  There were no services scheduled during the off-season.  Plaintiff performed services for Defendant-Employer a total of 36 weeks during the 52 weeks preceding the date of injury.  Plaintiff’s gross wages from Defendant-Employer for the 52 weeks preceding her date of injury were $39,412.83.  Additionally, Plaintiff worked during the off-season for another symphony where she made $1,080.00 per week and received a $6,000.00 housing allowance.

• 97-2(5) provides five methods to calculate average weekly wages. In this case, the Commission applied the fifth method of calculation since all other methods would yield unfair results. Plaintiff argued the Commission erred and should have applied the second method of calculation, and appealed the decision to the Court of Appeals.

The second method of calculation applies where the employee “lost more than seven consecutive calendar days at one or more times” in the 52 weeks preceding the date of injury.  Plaintiff argued method two should have applied because her contract period was for a year and the 16 weeks she did not work should be considered “lost.”

The Court found that Plaintiff performed services for Defendant-Employer pursuant to a contract which contemplated 36 weeks of work, not 52.  Her contract did not require or offer any work during the time when Plaintiff was scheduled for the off-season.  The Court looked to the Conyers case, which was directly on point and controlling.  In Conyers, the Court determined whether the average weekly wages of a school bus driver should be calculated with or without regard to the summer vacation period.  The Court rejected the second method in Conyers since the employment was for a fixed and definite time of less than 52 weeks.  Because Plaintiff’s job was non-existent during a portion of the year, she did not “lose” time.

Plaintiff also argued the third method should apply.  The third method applies where employment prior to the injury was for a period less than 52 weeks.  In such an event, the Commission would divide the earnings by the number of weeks the employee earned wages, provided the results are “fair and just to both parties.”  In Conyers, the Court analyzed the third method, but determined Plaintiff’s yearly salary would be nearly $5,000.00 more than her actual pre-injury wages using the third method of calculation.  The third method was rejected in Conyers because it put the employee in a better position and the employer in a worse position than before the injury.

Here, Plaintiff earned $39,412.83 while working 36 weeks.  Applying the third method of calculation would result in annualized wages of $56,929.60, over $17,000.00 more than Plaintiff’s actual pre-injury yearly wages.  Plaintiff argued the third method more accurately reflected her earning capacity since she was earning wages in a second job.  However, the statute provides that average weekly wages “shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury.”

The Court calculated Plaintiff’s average weekly wage by dividing her annual gross income by 52.  Based upon Conyers, the Commission’s use and application of the fifth method of calculation was affirmed.

Practice Point

When calculating average weekly wage for an injured employee, be sure to accurately determine how many weeks in the preceding 52 week period Plaintiff has worked.  If Plaintiff has worked less than 52 weeks, look to their employment contract to determine whether they were required or offered all 52 weeks of work.  Finally, make sure Plaintiff’s average weekly wages accurately reflect their annual gross income.