Total number of weeks worked considered in calculation of AWW
Case name: Vinyard v. Palo Alto, Inc. d/b/a Pizza Hut, No. 30,846 (N.M. Ct. App. 11/02/12).
The New Mexico Court of Appeals held that a driver's average weekly wage for both of his jobs should be calculated by dividing his wages for each job by the number of weeks he worked at each job.
What it means:
In New Mexico, in calculating the AWW for employment for less than 26 weeks, the total wages earned by the worker should be divided by the number of weeks he worked in the job.
Summary: A delivery driver for a pizza restaurant was injured in a traffic accident while working. The injury arose out of and in the course of his employment. He had worked for the restaurant for nine weeks. He was also employed for 14 weeks as a horse trainer in his family's business. The restaurant did not dispute that the driver was entitled to receive compensation benefits reflecting his wages from both jobs. The New Mexico Court of Appeals held that his average weekly wage for each job should be calculated by dividing his wages from each job by the number of weeks he was employed at each job.
The court explained that for employment for less than 26 weeks the total wages earned by a worker in the job should be divided by the number of weeks "actually worked" in the employment. The court said that it was an error for the workers' compensation judge to exclude six weeks of the worker's employment when calculating his AWW. The court explained that it was possible to determine the AWW for both jobs and to average the results to yield a single aggregate average weekly wage.
The court also found that the driver was entitled to attorney's fees. The worker's attorney did not fail to submit documents supporting the request.
Read more at the WorkersComp Forum homepage.
December 17, 2012
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