Employee Paid By The Week At The Time Of The Work Injury, Regardless Whether He Was Paid Otherwise At Other Times

This seems to be the month for Average Weekly Wage (AWW) cases.  If you have not been keeping up with our blog (first, shame on you! 😉 ), AWW is the calculation of an injured worker’s wages, which is used to determine the amount of workers’ compensation benefits the injured worker will receive.  Last week, we discussed the Toigo Orchards, LLC and Nationwide Insurance Company v. Workers’ Compensation Appeal Board (Gaffney) case, which dealt with a situation where the worker did not earn a regular set amount each week.  This week we will look at a case with set weekly earnings.

In Lidey v. Workers’ Compensation Appeal Board (Tropical Amusements, Inc.), the injured worker was employed as manager/fabricator of company who provides amusement park and carnival rides.  While doing his job, the employee suffered a severe injury to his right arm, in which the arm was fractured and crushed, requiring multiple surgical procedures.  At the time of the injury, he was paid $2,000.00 per week.  In the year prior to his injury, his wages increased from $1,000.00 per week to $2,000.00 per week, at least temporarily.  There was no discussion whether this rate would continue indefinitely.

Though workers’ compensation benefits were paid voluntarily, they were based on an AWW of $640.00 (yielding a weekly compensation rate of $458.50).  Believing he should have compensation based on the AWW of $2,000.00, the injured worker filed a Petition to Review.  After evaluating the evidence (primarily testimony from both sides), the Workers’ Compensation Judge (WCJ) granted the Petition for Review, finding that the AWW indeed should be $2,000.00, for a resulting workers’ compensation rate of $917.00 (the maximum rate for 2013, the year of the injury).

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) modified the decision of the WCJ, reducing the AWW to $717.95.  The WCAB felt that the decision of the WCJ “artificially inflated Claimant’s compensation rate in comparison to his pre-injury earning experience.”  The WCAB concluded that Section 309(d) (the general calculation which we discussed in the Gaffney blog, used when the earnings are not set by the week) should have been used, since he had been employed by the employer for at least the year before the injury and wages had varied during that time.

The Commonwealth Court of Pennsylvania reversed the WCAB, finding that the Pennsylvania Workers’ Compensation Act was specific in this regard.  If, at the time of the injury, wages are fixed by the week, then it does not matter how long the employee worked for the employer, or whether wages had varied prior to that.  The key time to examine is the time of the injury.  The evidence was undisputed that at the time of the injury, the injured worker earned $2,000.00 per week.  As such, the WCJ was correct in finding the AWW to be $2,000.00, with a resulting compensation rate of the maximum for that year, $917.00.