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A brand new release from the Delaware Supreme Court and some new law on the wage statute, 19 Del. Code Section 2302. Bravo to claimant attorney Yvonne Saville for her persuasive oral argument and what I suspect was a scrumptious brief. Here is the issue: if claimant is employed for 26 weeks prior to an occupational injury but only works 16 out of those 26 weeks, what do you do with the 10 weeks where there is zero wage? And what statute do you look at --19 Del. Code Section 2302(b), Section 2302(b)(1), or Section 2302(b)(2)?
Employer argued that the language in Section 2302(b) refers to the worker being employed, irrespective of whether claimant worked all those weeks. That section requires that one take the average, and include the zeros. The claimant in this was employed by Diamond State Port Corp. for 12 years, but her work activity was dependent on when the ships came into port. Under the employer's analysis, Section 2302(b) would be the governing statute because claimant was "employed" for the entire 26 weeks leading up to her injury.
Claimant argued that the term "work" in Section 2302(b)(1) it meant "work actually performed." Notwithstanding her 12-year tenure with this employer, claimant only worked 16 of the 26 weeks preceding the injury. In a 14-page decision, the Supreme Court agreed with the claimant's argument. And rejected the employer's argument that by allowing for an average weekly wage of $788.12 and resulting disability benefit rate, claimant would receive more total income on workers' comp the 26 weeks following her injury than she did in the 26 weeks preceding her injury, since her previous remuneration was sporadic. Isn't life sometimes delicious?
The bottom line is that the workers' compensation statute is intended to compensate workers for lost earning capacity and not actual lost wages....so sayeth the high court. The court acknowledged that the competing interpretations 19 Del. Code Section 2302(b) and related subsections were "both beguiling." The statutory construction analysis makes this a keeper. I can see this issue cropping up again with another factual variation on a theme, especially given the court's comment that this particular scenario is not one it believed that the General Assembly contemplated when the statute was crafted.
Shirley Taylor v. Diamond State Port Corp., No. 287, 2010 (Del. Supr. 2/16/11).
One thing about this decision bothers me, and perhaps I am overlooking some essential facts (or have done far too much defense work in my career). Early on in this decision it states that the claimant did not work those 10 weeks due to two factors-- the one had to do with when the ships came into port and the other had to do with an unrelated health condition that prevented her from working in given weeks. The weeks she did not work because she could not work-- how do they represent part of her "lost earning capacity" when she was legitimately unable to work?
Well, props again to Yvonne Saville and her partner Mike Weiss for this victory. Bet those attorneys fees on appeal are gonna be sweeter than cheesecake.
The Queen of Cheesecake,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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I do not think anyone can write a statute like this and not have some aspects of it be ambiguous in some circumstances. (at least I know I can't) When this was written, it was designed to provide straightforward rules for calculating the compensation rate in circumstances where there was adequate work history to do so. Then it was intended to provide a set of tools for reaching the correct compensation rate that were clearer than the existing tools and built on that straight forward calculation in circumstances with less data or less history, or unusual events, without disturbing the years of interpretation of the purpose of the process that were all tied up in arguments about how wage calculations were to be done under the old formulation.
As I congratulated Yvonne on her stellar performance, I did admit that I had a few quibbles with some of the details of the decision, however it hit the correct points on how the statute was intended to work in this sort of situation with almost no missteps I can identify. And it certainly reflected the legislative intent and correct public policies by which to interpret it where the Superior Court decision missed the mark almost entirely. You do not count nulls under the design of this statute and then divide the total wages by not only earning weeks, but also the nulls. If you do, you are averaging wages, not calculating earning power at the time of injury. Is it perfect? No. Is it better than the previous version of the statute? There is simply no doubt that it is.
The carriers got their simple calculation for the majority of cases based on exactly what they asked for, the claimants got the protection that the week they got hurt being one where they performed at a lower wage than usual was not going to be the measure of what the injury took from them as a result of being unable to work at all. A number of really oddball calculations on the high and low end were eliminated even though they may have made sense in a few cases. Some things claimants bar liked about the result of interpretations of the old statute were gone and likewise for the employers bar, but clarity without changing the essential goal of the process would have been impossible without dispensing with them.
It has never been, is this a fair calculation for the employer?, all due respect to Judge Lee, his dicta to that effect was simply wrong. That issue was dealt with when the statute was constructed, even if the old one was flawed. It has always been about is this a fair representation of what the claimant can earn doing this kind of work, when working to their full capacity? The decision here properly interprets how to apply the new version with that goal in mind. To those who feel gored by it, I am sorry, but that is not only how it is supposed to work, absent a change by the General Assembly that will be hard fought, it IS how it works now that the Court has spoken. And even if many hours were spent to deliver this statute the way the working group wanted it, and there will likely be ambiguities in some situations, the statute contains tools for sorting most of them out rather clearly, provided the correct goal and policies are used to inform any interpretation.
Oh, and I invite those who think they can write a bulletproof version to submit it to the same withering fire this one received and be anywhere near as coherent. The people involved in the actual work of creating this beast will be happy to show you the errors you had no idea exist in your version, and it would have to meet the working groups instructions on how it was supposed to work. You might also try making some sausage if you like.
----Henry.