Claimant’s average weekly wage was properly calculated based on a 40-hour work week, even though he only worked a total of 10 days in the year preceding the work injury.

The claimant was employed by the employer as a corrections officer. He filed a Claim Petition alleging that on July 27, 2018, he was attacked by an inmate and sustained physical injuries. He later amended the petition to include a psychological component to the injury. 

The employer filed a Medical Only Notice of Compensation Payable (NCP), which described the injuries as “multiple lacerations.” In addition to filing an answer to the Claim Petition acknowledging a work-related physical injury, the employer also filed a review petition, alleging the NCP should be amended as to the nature of the injuries, and a termination petition, alleging the claimant had fully recovered from his work injury. 

According to the evidence presented to the workers’ compensation judge, the year prior to the work injury, the claimant worked a total of 10 days. He had not worked consistently during the prior three years and that, since April 2015, he had not worked a full 40-hour week. In a decision granting the Claim Petition, the judge found, based on a Collective Bargaining Agreement (CBA), the claimant had an expectation he would be paid $33.59 per hour for a 40-hour work week and the wages he earned in the year prior to the injury were a gross underestimation of his true earning capacity. The judge also dismissed the employer’s review and termination petitions. 

The employer appealed to the Appeal Board, which reversed an award of disfigurement benefits made by the judge, but the Board affirmed in all other respects. 

The employer then appealed to the Commonwealth Court, arguing the judge erred in calculating the claimant’s average weekly wage (AWW) based on an expected 40-hour work week as the evidence showed that since April 2015, the claimant had not worked a 40-hour work week. 

The court rejected the employer’s argument and dismissed their appeal. According to the court, Section 309(d.2) applied to the claimant’s average weekly wage calculation since the claimant worked less than a complete period of 13 calendar weeks prior to sustaining the work injury. Section 309(d.2) states the average weekly wage shall be the hourly wage rate, multiplied by the number of hours expected to work per week, under the terms of employment. The court noted the claimant was a long-term employee and maintained a continuing employment relationship with the employer under the terms of a CBA, even when he was not working due to past work-related disabilities or FMLA leave. 

The court additionally noted that after the injury, the employer offered the claimant modified work at the pay rate of $33.59 per hour, on a full-time basis, five days per week. The offer letter supported an expectation of earnings of $1,343.60 per week, and the court affirmed the AWW calculation made by the judge. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 2, February 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.}