You have to love Kris Starr. A former Hearing Officer for the Delaware IAB, Kris set his sights on private practice a few years ago, and with him he brought an encyclopedic understanding of the basics of the work comp law, as well as the intricacies that allow a practitioner to stand out. Kris sent me today's case on the subject of partial disability ["TPD"] and I asked him for his comments. This is what he offered:
"Think shift differential and overtime are the bomb? Should wages for alleged TPD loss be actually calculated or averaged in discreet time periods? Do you have a headache yet? IAB rests it laurels on actual earning power. Delaware Supreme Court's 1968 decision in Ruddy makes a mighty comeback. Gosh, I miss 1968! "
I am not sure that Kris was alive in 1968 but in any event, this case stands for the proposition that sometimes old law makes new law. And that we should never overlook those seminal cases that make up the infrastructure of our law. Case in point is Mary Friswell v. New Castle County, IAB#13402275 (11/7/11). The issue presented to the Board was how three discreet periods of TPD should be calculated. The claimant advocated for a week- by- week calculation that would entitle her to a total of $6008.88; the employer's position is that we should take the average, which would yield a payment of $2700.50.
Claimant's pre-injury average weekly wage was $1559.07. She sustained a light duty work status and resulting diminished earning capacity for the periods 10/14/08 until 5/13/09, 5/20/09 until 6/21/09, and 7/30/09 until 5/11/11, at which time she was placed on total disability to coincide with surgery. The claimant's normal pre-injury compensation would include overtime, shift differential, and court and "standby court time" compensation. Of note, the claimant agreed that for over 10 bi-weekly pay periods following the work injury, she earned more than her bi-weekly average weekly wage. The employer agreed that for some post-accident bi-weekly pay periods, the claimant earned less due to factors such as shift differential and loss of overtime.
Here is what the Board had to say in resolving this issue in employer's favor:
"The Board concludes that the week-by-week comparison does not properly reflect the weeks for which she received more income than the stipulated "average" wage of $1559.07 per week, which necessarily impacts the calculation of the partial disability results. In other words, as employer contends, the average of the claimant's earnings for the extended period that she was restricted from performing regular duty work represents a more accurate estimate of her loss of her earning capacity, or "earning power", as defined by Ruddy v. I.D. Griffith, 237 A.2d 700, 703 (Del. 1968). By calculating the partial disability exposure based on the average of wages for the extended period, appropriate weight and consideration is given to the weeks during which claimant made more than the stipulated average weekly wage, thereby restricting her from any partial disability entitlement since she demonstrated no loss in earnings. The term 'earning power' does not mean actual earnings or 'wages received', the term used in Section 2325 for the pre-injury factor of the computation of [partial] disability. 'Actual earnings' and 'earning power' are not synonymous under the Act."
I really like this case. It answers a question, the solution for which is not readily available in the statute, or even in any case law of which I am aware. And who would have thought that two different approaches to calculating TPD would yield such startlingly different results, claimant's calculation representing a payment that is roughly two and a half times the result of a different manner of computation. Thank you, Kris Starr for adding this little morsel of enlightenment to our holiday table. And for more about my holiday menu and what I will be serving my family next week, check out the next post! Heck-I may even include a recipe....:>)
Coming to you this week with an "attitude of gratitude",Cassandra Roberts
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