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Average Weekly Wage Does Not Include Unproved Overtime Pay: Cal. Comp. Cases January Advanced Postings (1/23/2013)

Here’s the fourth batch of advanced postings for the January 2013 issue of Cal. Comp. Cases. Lexis.com subscribers can link to the cases to read the complete headnotes. © Copyright 2013 LexisNexis. All rights reserved. Yolanda Cruz Garduno, Petitioner v. Workers' Compensation Appeals...

Update From the Benefits Review Board (May 2013)

By Karen Koenig, Associate General Counsel, Longshore, Benefits Review Board, Washington, D.C. © Copyright 2013 U.S. Dept. of Labor. All rights reserved. Reprinted with permission. This article appeared in the Benefits Review Board Service—Longshore Reporter (LexisNexis). BRB Statistical...

Slight Increase in California Average Wage Means a Minor Bump in 2014 Workers’ Comp Benefits

California’s State Average Weekly Wage (SAWW) rose less than 1 percent from $1,059.38 to $1,067.25 in the 12 months ending March 31, 2013, which the California Workers’ Compensation Institute (CWCI) reports will boost temporary total disability (TTD) rates for 2014 work injury claims, as...

Vermont Workers' Compensation Update: April to June 2013

VERMONT SUPREME COURT DECISIONS Brown v W.T. Martin Plumbing & Heating, Inc. , 2013 VT 38 [ 2013 VT 38 ] (Jun. 21, 2013). Court reverses decisions of both the Commissioner and de novo bench determination (Judge Wesley) in determining that CRPS impairment ratings can be awarded pursuant to the...

FL: Share of Corporate Profits May Be Used to Compute AWW

A Florida appellate court recently held that in at least some situations, a claimant’s average weekly wage may include the pro rata portion of the corporate profits to which he or she was entitled as a shareholder. The employer argued that according to § 440.02(28), Fla. Stat., indemnity benefits...

TN: Regular Layoff Intervals Must Be Included in Computation of AWW

A Tennessee appellate court recently reversed a trial court’s determination of an injured employee’s average weekly wage, finding that the court erred in failing to include in its computation the time periods during which the employee was laid off [see Tenn. Code Ann. § 50-6-102(3)(A...

DC: Average Weekly Wage Must Include Housing Allowance Provided to Employee

The D.C. Court of Appeals recently held that the district’s Compensation Review Board erred in directing an ALJ to disregard a housing allowance that an employer was contractually obligated to pay an employee when calculating the employee’s average weekly wage. In the instant case, the employee...

OK: Moonlighting Sheriff’s Office Major Was Employee of Restaurant When He Was Shot and Robbed

Finding that the “plain, clear, unmistakable, unambiguous, mandatory, and unequivocal language” of 85 O.S. 2011 § 313(G) mandated that private employers, hiring off-duty municipal employees, should alone be responsible for the payment of workers’ compensation benefits arising from...

IL: AWW Should Not Include Self-Employed Income From Piano Lessons Offered in Claimant’s Home

An Illinois appellate court recently held that the state’s Workers’ Compensation Commission incorrectly calculated the claimant's average weekly wage under 820 ILCS 305/10 by including profits from claimant’s self-employment—providing piano lessons in her home. The court indicated...

Nebraska: Per Diem for Out-of-State Travel Not Part of Average Weekly Wage

The Nebraska Court of Appeals affirmed the exclusion from a construction worker’s average weekly wage of a per diem paid when the worker performed services outside of Nebraska, on the basis that the Compensation Court’s finding that it was fixed at the time of hiring and was a real and definite...

Washington: Gasoline Provided for Company Van Not Part of Injured Employee’s “Wages”

The value of gasoline provided to an employee for the employee’s use of a company van is not “fuel,” as that term is used in Wash. Rev. Code § 51.08.178, since it is not “critical to the worker’s health or survival,” held a Washington state appellate court. The...

Small Change: DE Superior Court Holds There Is No Distinction Between a “Probationary” And “Regular” Pay Rate In Calculating Wage Basis

I just got back from London and was musing to myself that the blog has once again been silent to long. Talk about an answered prayer…….. Today’s post is courtesy of David Boswell who broke out of the usual mold of sending me a case that he won. Pretty much squares with my assessment...

Split Panel Rejects Maximum Award of PTD Benefits: Cal. Comp. Cases November Advanced Postings (10/22/2014)

Here’s the first batch of advanced postings for the November 2014 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2014 LexisNexis. All rights reserved. Marco Peris , Petitioner v. Workers'...

North Carolina: Average Weekly Wage Computation Must Be Just to Both Parties

Construing a statutory provision that describes how an injured employee’s average weekly wage should be computed, a North Carolina appellate has affirmed a determination by the state’s Industrial Commission that based an award of death benefits on the wages the deceased employee earned during...

Iowa: Annual Profitability Bonus Should Be Included in Injured Worker’s AWW Computation

An Iowa appellate court held that an assistant manager’s annual bonus was sufficiently “regular” to be included in the assistant manager’s “gross salary, wages, or earnings” identified in Iowa Code § 85.36, and should, therefore, be included in the computation...

Wisconsin: Average Weekly Wage for 17-Year-Old Killed in Work-Related Injury Should Be Based on Probable Earnings Had He Reached Age of 27

Death benefits to be paid following the work-related death of a 17-year-old farm worker should be calculated using the presumption provided for in Wis. Stat. § 102.11(1)(g), held a Wisconsin court. That statute provides that where the employee is under 27 years of age at the time of death, his or...

Louisiana: Injured Worker’s Average Weekly Wage Should Have Included Tips

An injured worker’s average weekly wage should have been computed not only based on the $400 he received each week from his employer; the tips he received should also be included, held a Louisiana appellate court. The court initially observed that the claimant testified that he earned an average...

South Dakota: Wages From Multiple Employers Should Be Aggregated to Compute Injured Employee’s Average Weekly Wage

Adopting the “growing minority view” identified in Larson’s Workers’ Compensation Law , the Supreme Court of South Dakota held that the wages an injured employee earned at three, unrelated employments should be aggregated for purposes of computing her average weekly wage and,...

CWCI Reports California Workers’ Comp Benefits Will Increase in 2016

California’s State Average Weekly Wage (SAWW) rose just under 2.3 percent from $1,095.70 to $1,120.67 in the year ending March 31, 2015, which the California Workers’ Compensation Institute (CWCI) notes will boost temporary total disability (TTD) and permanent total disability (PTD) rates...

That Halloween Hi-Jinx Post ……and a Few More Dollars in Delaware

So this post is an unabashedly shameful effort to highlight Matt Fogg’s daughters in their Halloween costumes. I give you Katelyn and Madesyn Fogg. Yes, they are as cute as the dickens, but I understand Matt also has a couple of really special cats and I would welcome the chance to feature them...

Connecticut: Vacation Days Taken Prior to Injury Must Be Counted for Weekly Wage Purposes

Where a Connecticut employee enjoyed two weeks of paid vacation during the 52 weeks preceding his injury, those vacation days did not constitute “an absence for seven consecutive calendar days” under the terms of Conn. Gen. Stat. § 31–310(a), which generally provides that an injured...

Vermont Workers' Compensation Update: January to March 2016

This list of recent noteworthy cases was compiled by Keith J. Kasper of McCormick, Fitzpatrick, Kasper & Buchard, PC. The Voice of The Department, Ellen Gonyaw, the receptionist, has retired after almost 9 years to move to Maine to open a campground. We all wish her well and hope she...

Iowa: Employer’s 401k Contributions Not Included in Average Weekly Wage Computation

The employer’s matching contributions to an employee’s 401k plan are not weekly earnings for purposes of calculating the employee’s workers’ compensation benefits, held an Iowa appellate court, affirming a decision by a state district court on that issue. The appellate court acknowledged...

CWCI Notes California Workers’ Comp Benefit Increases For 2017

California’s State Average Weekly Wage (SAWW) rose just over 3.9 percent from $1,120.67 to $1,164.51 in the year ending March 31, 2016, which the California Workers’ Compensation Institute (CWCI) reports will boost temporary total disability (TTD) and permanent total disability (PTD) rates...

Maryland: Sole Proprietor’s AWW Computed on Net Profit, Not Gross Receipts

In a matter of first impression, the Court of Appeals of Maryland held that average weekly wage of a sole proprietor who elects coverage under the Maryland Workers’ Compensation Act should be calculated based upon the sole proprietorship’s net profit—not his or her gross income or gross...