Straightforward calculation of average weekly wage stands for driver
Case name: Bowles v. TAP Enterprises, Inc., No. 106,964 (Kan. Ct. App. 06/08/12, unpublished).
Ruling: In an unpublished decision, the Kansas Court of Appeals held that a driver was entitled to benefits based on an average weekly wage calculated by dividing his total wages earned by the number of weeks he worked.
What it means: In Kansas, the average weekly wage of a worker who worked for more than one week is calculated by dividing the amount of wages earned by the number of weeks worked.
Summary: A truck driver earned $100 per day when he was on duty. He was also paid mileage and was eligible for bonuses. His work schedule was 18 consecutive days on duty followed by 18 days off work. After working for 13 days and before reaching his first off-duty period, he injured his arms and shoulder in a work-related accident. He did not return to work for the employer. The administrative law judge awarded him compensation, and the workers' compensation appeals board based the award on an average weekly wage of the total amount he earned divided by the number of weeks he worked. The employer appealed, arguing that the driver's average weekly wage was incorrectly calculated. The Kansas Court of Appeals held that the board correctly calculated the driver's AWW.
A limitation in the statute provides that the average gross weekly wage should not exceed the actual average gross weekly wage the worker was reasonably expected to earn in his employment. Despite the employer's arguments that the board should have considered the driver's 18 days of unpaid time after his initial 18 days of work, the court determined that this limitation only applied to workers who worked less than one week before the accident.
The court explained that the legislature considered the calculation of the AWW of a worker who worked at least one week to be a "straightforward arithmetic calculation." The legislature realized that the calculation was not so simple for a worker who worked less than one week for the employer.
Read more at the WorkersComp Forum homepage.
August 13, 2012
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