Unusual circumstances in hiring permit different calculation of benefits
Thorpe v. Clary, No. 1010-10-2 (Va. Ct. App. 02/01/11).
Ruling: The Virginia Court of Appeals held a widow was entitled to benefits calculated at an average weekly wage of $2,500 for a one-week construction job divided by 52 weeks.
What it means: In Tennessee, if exceptional reasons made the general equation for calculating average weekly wage unfair, another method of computing the AWW may be used to approximate the amount the injured employee would be earning if not for the injury.
Summary: A worker owned a self-storage facility and also operated a side business performing residential ornamental iron work. One of his self-storage customers asked if he could complete the construction of an unfinished metal building for a fixed sum of $5,000. It was a slow time between jobs, so the worker agreed to take the job. The worker and his employee agreed to split the sum equally. The customer wanted the job completed in one week and said he would pay when the job was done. Shortly after starting the building, the worker fell through a skylight to his death. His widow filed a claim for benefits. The Virginia Court of Appeals held the widow was entitled to benefits calculated by dividing $2,500 by 52.
The widow argued that she was entitled to an average weekly wage of $2,500. The court said the only evidence in support of the average weekly wage was that the worker agreed to split a one-time $5,000 payment for a construction job that might or might not have lasted a week. The worker had never engaged in similar contracting in the past, and no evidence suggested he likely would in the future. The one week's high pay and the circumstances surrounding the hiring, was not a "realistic judgment" of the worker's future loss. The court said exceptional reasons created a need for deviating from the usual calculation of AWW.
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March 14, 2011
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