An issue that is often at the heart of worker’s compensation litigation involves the calculation of the worker’s Average Weekly Wage. Many topics involving the correct calculation of the Claimant’s Average Weekly Wage are covered on this site. (For a recap on Calculating Partial Disability click here; for an explanation of how a Compensation Rate should be calculated see here; for an explanation of how Overtime factors in see here.) One topic that can be very difficult for an injured worker (and for some workers’ comp attorneys) to understand is how the transition from part-time work to full-time work can impact a person’s Average Weekly Wage (or AWW). Fortunately for injured workers, the Pennsylvania Supreme Court of Pennsylvania issued a decision in which they found that, in some scenarios, an injured worker who had been working part-time before becoming a full-time employee and was subsequently injured, may have his or her AWW calculated solely on the basis of full-time work.
In the case of Hannaberry HVAC and Donegal Mutual Insurance Companies v. WCAB (Snyder, JR.), the PA Supreme Court was confronted with a difficult scenario involving what hours should be used in calculating an injured worker’s average weekly wage. [Your compensation rate is determined from the A.W.W.] In this case, an employee had been working for a company part-time while he attended school. Once the employee graduated from school, he began working full-time with the same employer. A few months after transitioning to full-time work, the claimant was injured in the course of his employment. The insurance company accepted the injury, but calculated the employee’s average weekly wage based upon the previous year. This calculation lead to a much lower average weekly wage and comp rate than a calculation based upon full-time work would have.
In addressing the issue of the average weekly wage, the court looked to the workers’ comp regulations and found that this specific situation was not addressed by Section 309 of the Act. The court found through a thorough reading of the Act, that “a fair ascertainment” of the employee’s wages was the intent of the legislature. The court also pointed to other situations which are accounted for under Section 309 for guidance. One such scenario is when shortly after beginning a new job, an employee is injured. Under Section 309(d), that employee’s average weekly wage should be based upon the employee’s expectation of wages, including any overtime the employee expected to work, because that is a more accurate depiction of what the injured worker is actually missing out on. By applying that reasoning, and the general “overall humanitarian purpose of the Act”, the court found that when there is a paradigm shift from part-time to full-time work, and an employee has completed at least one full thirteen week period of full-time work, the average weekly wage should be calculated based solely upon the full-time hours that the employee worked.
This situation is just another reminder that it is always important to review the insurer’s determination of your average weekly wage. Even a small discrepancy can be worth tens of thousands of dollars to your case. In most cases we review (about 80% of the time), we find the AWW was miscalculated not in the injured workers’ favor.