That Halloween Hi-Jinx Post… & 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 as well (Matt, take a hint!)
But today’s post is not without its own merit. An appeals case, no less. Jerry Crouse v. Hy-Point Dairy Farms, 2015 WL 4485559 (Del. Super. Ct. July 22, 2015). It presents a quirky but not unheard of situation of what do you do in calculating an injured worker’s average weekly wage when the prior payroll period includes temp total disability, temp partial disability, and/or vacation?
In this particular case, claimant had two work accidents. Temp total was owed after the second injury and there was a dispute as to whether the AWW should include temp partial paid in the 26 weeks leading up to this second work event. Both parties agree that the gross wages earned in this period amounted to $15,054.64, but the Appellant (claimant) contended that the AWW calculation incorrectly excluded partial disability payments, seeking to add a TPD total payment of $1739.41 to the earned wages, and advocating for 22 weeks and not 26 weeks as a divisor. Under this argument, claimant’s AWW would escalate from $603.07 to $763.37. Employer’s AWW figure excluded the temp partial but allowed for the vacation pay. Of note, the IAB’s calculation, which was affirmed on appeal, yielded an AWW of $684.31; this calculation excluded both vacation pay and the TPD payments, and used a divisor of 22 weeks.
The takeaways here?
The AWW should include wages, overtime pay, gratuities and regularly paid bonuses
The AWW should exclude all “fringe and other in-kind employment benefits”
The divisor should be the number of weeks actually worked
The AWW calculation should not include any TPD benefits paid
The AWW should not include any weeks claimant was on TTD or on vacation
If you did not know all of this before, you have young Katelyn and Madesyn to thank!
Irreverently yours,
Cassandra Roberts
