More Insight from the Industrial Accident Board to Assist in Correctly Calculating the Average Weekly Wage

It is important to correctly calculate the average weekly wage (AWW) from the beginning of the claim. The AWW is the starting point for calculating the rate that is used to pay all non-medical benefits. The pertinent statute is 19 Del. C. § 2302. 

If there is no contract setting forth an employee’s pay or the hours an employee is expected to work, the AWW can, in some cases, be accurately calculated by adding a claimant’s gross wages for the 26 weeks prior to the date of injury and dividing by 26. Doing this in other cases, where the claimant has worked at least 26 weeks, could result in a gross overpayment of workers’ compensation benefits since fringe benefits—vacation, sick and holiday pay—should not be included in the AWW calculation. 

Although the facts in Porter v. Mycroft Signs are unusual due to the brevity of the claimant’s employment and the nature of the employer’s business, this case is useful because the Industrial Accident Board discusses whether lodging and a per diem payment of $45 per day should be included in the AWW. The Board does include lodging in the AWW but rejects the claimant’s argument that the per diem of $45 per day should be included. Excluding the per diem in this case results in the AWW being $315 per week, which is less than what was being sought by the claimant. In this decision, the Board also explains that “board” in 19 Del. C. § 2302(a) means regular meals in a place of lodging and is different than per diem. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025, is prepared by Marshall Dennehey to provide information on recent legal 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}