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The correct calculation of average weekly wage does not include personal, holiday, vacation, sick or vacation sell-back time.

October 1, 2018
Salvatore Musemici v. City of Dover, (IAB No. 1468435 – Decided May 25, 2018)

The Board framed the issue in this case as: Should the claimant’s average weekly wage be calculated using the 26 weeks prior to his work injury, how should that be done and what should be included in that calculation? Under Section 2302 (a) of the Act, the term “average weekly wage” is defined, in part, as the weekly wage earned by the employee at the time of the injury at the job in which the employee was injured, including overtime pay, gratuities and regularly paid bonuses (other than an employer’s gratuity or holiday bonuses), but excluding all fringe or other in-kind employment benefits. The Board relied on that statute, as well as case law, for the proposition that payments for any entitlement or benefit other than wages for time actually worked, overtime pay, gratuities, regularly paid bonuses, and room and board should not be included in the average weekly wage calculation. The Board rejected the claimant’s contention that his personal time, holiday time, vacation time, sick time, and vacation sell-back time should be included in the average weekly wage calculation since he admitted that those categories of time/pay were not times during which he “actually worked” or performed work. Rather, the claimant was paid for sick time, vacation time and holiday time, when he takes those days even though he does not work. Accordingly, the Board agreed with the employer’s contention that those amounts should not be included in the average weekly wage calculation.

 

 

Case Law Alerts, 4th Quarter, October 2018

Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2018 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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