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Case name: Crapsey v. Berkley Risk/Berkley Regional Insurance Co., No. E2009-01183-WC-R3-WC (Tenn. 07/12/10).

Ruling: The Tennessee Supreme Court held that a worker's average weekly wage should be calculated based on his earnings over a one-week period rather than based on his earnings for the weeks he worked during the 52 weeks before the injury.

Summary: A worker was hired on a temporary basis to assist in the setup and teardown of a fireworks show. He was injured while dismantling firework shells. He suffered from a partially amputated arm, broken bones, burns, a concussion, and hearing loss. The parties agreed that the worker was permanently and totally disabled as a result of the incident. The job was supposed to last seven days, and the worker was to be paid $150 per day. The injury occurred on the sixth day of work. The Tennessee Supreme Court held that the worker's average weekly wage should be calculated at $1,050 per week.

The employer contended that the correct average weekly wage was $525 per week. The employer calculated this amount based on two weeks of work in the 52-week period before the injury. This included $300 for working on the fireworks show for two days during the previous year, and $750 for the five days before the injury. A total of $1,050 during two weeks in the 52 weeks prior to the injury resulted in an average of $525.

Generally, actual wages should be used in calculating the worker's average weekly wage, except when the worker earns a given sum for a normal week. The court mentioned that the actual agreement between the worker and the employer was for the worker to work seven days a year and to be paid $150 per day. Therefore, the correct average weekly wage was $1,050 per week.

Read more at the WorkersComp Forum homepage.

October 11, 2010

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