'Sporadic' schedule OKs AWW calculation for time actually worked

In Delaware, a worker who works sporadically in the 26 weeks before her injury should have an average weekly wage calculated based on her work actually performed.

Case name: Taylor v. Diamond State Port Corp., No. 287, 2010 (Del. 02/16/11, unpublished).

Ruling: In an unpublished decision, the Delaware Supreme Court held that a laborer's average weekly wage should be calculated based on the number of weeks she actually worked in the 26 weeks before she was injured.

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What it means: In Delaware, a worker who works sporadically in the 26 weeks before her injury should have an average weekly wage calculated based on her work actually performed.

Summary: A laborer for a port corporation suffered injuries to her head, neck, back, and right ankle while working. Although she was employed by the corporation for 12 years, she only worked 10 of the 26 weeks before her injury. She could not work every week because there was not always available work and she also had health conditions unrelated to her job that occasionally prevented her from working. Because of her "sporadic" work schedule, the parties could not agree on the method for calculating the laborer's average weekly wage. The Delaware Supreme Court held that the laborer's average weekly wage should be calculated based on the time she actually worked in the 26 weeks before her injury.

The court mentioned that the legislature's intent was to compensate workers for their lost earning capacity rather than for their lost income. Construing the statute, the court concluded that the term "worked" means "work actually performed," contrary to the corporation's argument that the term indicated "was employed." The court said that the legislature's chosen text signaled that they did not intend to calculate average weekly wage values differently for different workers on the basis of employment tenure.

The court noted that its decision would result in the laborer receiving more total income in the 26 weeks after her injury than during the 26 weeks before her injury. However, this did not result in a windfall because it represented her earning capacity rather than her actual income.

Read more at the WorkersComp Forum homepage.

April 11, 2011

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