Time on strike excluded from wage calculation

The Virginia Court of Appeals upheld a ruling that a worker¿s preinjury average weekly wage computation does not include the weeks when the worker was on strike.

Case name: Goodyear Tire & Rubber Co. v. Mendenall, No. 2905-08-3 (Va. Ct. App. 09/08/09, unpublished).

Ruling: The Virginia Court of Appeals upheld a ruling that a worker's preinjury average weekly wage computation does not include the weeks when the worker was on strike.

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What it means: In Virginia, the periods during which a worker does not earn wages for more than seven consecutive days, such as a 12-week strike period, are excluded when calculating his preinjury wages.

Summary: A Goodyear worker injured his shoulder at work. The year before his injury, the worker participated in a 12-week union strike against Goodyear in which he received no pay. He also took three weeks of unpaid vacation during the same year. The worker and Goodyear agreed that he was entitled to workers' compensation benefits and lifetime medical benefits, but disputed the calculation of the worker's AWW. The worker argued the 12 weeks when he was on strike and the three weeks of unpaid vacation should be excluded from the AWW calculation. The Virginia Court of Appeals agreed with the worker. It pointed out that the AWW is determined by looking at the worker's earnings in the 52 weeks immediately preceding the date of injury, divided by 52. However, the court explained that if an injured worker lost more than seven consecutive days during that period, then the earnings for the remainder of the 52 weeks is divided by the number of weeks remaining after that time has been deducted.

The court pointed out that the method was fair and just, and no evidence was presented that suggested otherwise. It also noted that the worker was not being compensated for lost time. Rather, the court was best approximating what the worker would be earning if not for injury by excluding time not worked that might be considered a deviation from his normal work schedule.

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October 5, 2009

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