The Supreme Court holds that where a claimant worked less than 26 weeks prior to the work injury, the average weekly wage calculation should be based only on the ACTUAL weeks where the claimant was working.

This case involved the statutory interpretation of Section 2302(b) of The Act which deals with the average weekly wage calculation. The undisputed facts show that on August 2, 2007, the claimant suffered an injury while working as a laborer for the employer, sustaining injuries to her head, neck, back and right ankle. The claimant received compensation for her injuries which included total disability, temporary partial disability, permanency and medical expenses. The claimant had been a 12-year employee with the employer and had what was described as a sporadic work schedule. Importantly, for the 26 weeks prior to the work injury, the claimant had worked only 16 of those weeks, and for the other ten weeks, either the employer had no work or the claimant missed work due to other health conditions. The dispute involved the correct calculation of the claimant's average weekly wage. The employer contended that the correct average weekly wage was $485.00, based on the claimant's total wages for the 26 weeks prior to the work injury divided by 26. On the other hand, the claimant contended that her average weekly wage should be $788.12, which was based on the total wages received during the 26 weeks prior to the work injury divided by the actual 16 weeks that she worked. A hearing took place before the board in which they agreed with the employer's calculation. The Superior Court affirmed that decision. The Supreme Court reversed and held that the claimant's interpretation was the correct one. The applicable statute which is Section 2302(b) provides as follows: "(b) the average weekly wage shall be determined by computing the total wages paid to the employee during the 26 weeks immediately preceding the date of injury and dividing by 26, provided that: (1) If the employee worked less than 26 weeks, but at least 13 weeks, in the employment in which the employee was injured, the average weekly wage shall be based upon the total wage earned by the employee in the employment in which the employee was injured, divided by the total number of weeks actually worked in that employment." The Supreme Court noted at the outset that this statute was ambiguous and they would, therefore, need to ascertain the legislative intent underlying it. The Court rejected the employer's contention that use of the term "worked" as used in the statute was synonymous to "was employed." Instead, the Court agreed that the claimant's interpretation that "worked" for purposes of that statute was synonymous to "work actually performed." In reaching this conclusion, the Court noted that the purpose of the statute is to compensate employees for lost earning capacity rather than actual lost wages and the result it was reaching, therefore, did not create a windfall in favor of the claimant. Since the use of the term "worked" in the statute means the times that the claimant actually "performed work," her average weekly wage must be calculated by using only the 16 actual weeks out of the 26 weeks preceding the injury where she performed work and had wages.

Case Law Alert - 3rd Qtr 2011