CLAIM NO. F312876
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 9, 2006
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Honorable Eddie H. Walker, Jr., Attorney at Law, Fort Smith, Arkansas.
Respondent No. 1 represented by Honorable E. Diane Graham, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by Honorable David Pake, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals the March 24, 2005 decision of the Administrative Law Judge finding that the claimant’s average weekly wage is $391.00, which would entitle him to compensation at the rate of $261.00 per week for total disability benefits. After our de novo review of the record, we reverse the Administrative Law Judge’s decision to reflect an average weekly wage of $570.00, which would entitle the claimant to compensation at the rate of $380.00 per week for total disability benefits.
The claimant has been employed by the respondent employer for 28 years. By stipulation, the claimant had a compensable injury to his lumbar spine while working for the respondent employer on November 20, 2003. As a result of that compensable injury the claimant was assigned a permanent physical impairment rating in an amount equal to 10% to the body as a whole which was accepted and paid by respondent No. 1. In addition, the Second Injury Fund has accepted liability for benefits and has agreed that claimant is permanently and totally disabled.
Claimant testified that he worked for the respondent employer as a full-time employee and was required to be available for work 40 hours per week. Claimant admitted that he did not always work 40 hours per week for various reasons. Prior to November 20, 2003, claimant acknowledged that he had undergone numerous surgical procedures, some of which were work related and some of which were non-work related.
Claimant missed work as a result of these surgeries. Claimant missed work from May 8, 2003 through September 28, 2003 for a non-work related surgery to his knee. Claimant also admitted that he missed work for various periods of time under the Family Medical Leave Act and for company convenience. Company convenience occurred when the respondent employer did not have sufficient work available. Employees with enough seniority could chose to take off work with no pay and the absence would not count against them. Claimant testified that he frequently took off under company convenience in order to take care of his wife.
Claimant has filed this claim contending that at the time of the injury he had a contract of hire for 40 hours per week which would result in an average weekly wage of $608.00. Respondent No. 1 contends that the claimant’s average weekly wage is significantly less.
The statute governing average weekly wages as a basis for compensation is codified at Ark. Code Ann. § 11-9-518. That statute states in pertinent part:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.
(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
We agree with the Administrative Law Judge that the claimant did not have a contract of hire to work 40 hours a week which would entitle him to an average weekly wage of $608.00. We agree that this case presents exceptional circumstances, but we do not agree with the method in which the Administrative Law Judge determined the average weekly wage.
The Administrative Law Judge included the weeks that the claimant was off work for a non-work related injury in his calculation of average weekly wage. In our opinion, that is not just and fair to all parties concerned. The claimant should not be penalized for missing work for legitimate health reasons.
Based on the foregoing, we find that the claimant’s average weekly wage should be determined as follows. First, we have not considered the last week that claimant worked given the fact that he was injured during that week. Therefore, the last 51 weeks which are contained on the wage statement were considered. The wage statement reflects total wages of $20,289.11. Subtracting out the wages claimant earned during the week of his injury of $355.39 leaves total wages of $19,933.72. Dividing these wages by the 35 weeks that the claimant actually worked results in an average weekly wage of $570.00 ($19,933.72/35 = $569.53) which translates to a compensation rate of $380.00 ($570.00 x 66 b%)for total disability benefits.
In summary, we find that claimant earned an average weekly wage of $570.00 which would entitle him to compensation at the rate of $380.00 per week for total disability benefits. Respondent No. 1 is liable for payment of the difference between this compensation rate and compensation paid at a lesser rate, if any. In addition, Respondent No. 1 has controverted any benefits due to this difference.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 2002).
Since the claimant’s injury occurred after July 1, 2001, the claimant’s attorney’s fee is governed by the provisions of Ark. Code Ann. § 11-9-715 (Repl. 2002). Death Permanent TotalDisability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463
(2002).
For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $500.00 in accordance with Ark. Code Ann. §11-9-715(b) (Repl. 2002).
The respondents are directed to pay benefits in accordance with the findings of fact set forth herein.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION KAREN H. McKINNEY, Commissioner.
I respectfully dissent from the majority’s opinion finding that the claimant’s average weekly wage was $570 which entitled the claimant to a total disability rate of $380 per week. In my opinion, the well reasoned decision of the Administrative Law Judge finding that the claimant’s average weekly wage was $391 per week, which would entitle him a compensation rate of $261 per week was correct.
The majority agreed with the Administrative Law Judge that the claimant did not have a contract of hire to work 40 hours per week which would entitle him to an average weekly wage of $608, and that this case presents exceptional circumstances. The Administrative Law Judge considered the last 51 weeks that were contained on the claimant’s wage statement. In my opinion including all 51 weeks is the fair and just way to calculate the claimant’s average weekly wage. The majority has found that it is not fair and just to include the time periods that the claimant was off work for non-work related surgery in the calculation of the average weekly wage. However, I believe it would be just as unfair to conclude that the claimant’s average weekly wage should be based upon the 35 weeks that he worked. The evidence demonstrates that the claimant’s average absenteeism rate over the 5 years prior to his November 20, 2003, injury, was 38%. The claimant also received four weeks of vacation pay on September 28, 2003. Those contractual vacation pay amounts were included in the calculation. In my opinion, this is the fairest method to all parties involved. To do otherwise would entitle the claimant to a windfall and permanent total disability benefits based in large part on his preexisting condition and at the same time basing his workers’ compensation rate on wages that he could not and did not earn due to his preexisting conditions. Accordingly, I must respectfully dissent from the majority opinion.
_______________________________ KAREN H. McKINNEY, Commissioner