Diron Williams vs. Lebeouf Brothers Tow, ALJ Rosenow

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/WILLIAMS_DIRON_v_LEBEOUF_BROTHERS_TOW_2011LHC01467_(MAY_01_2012)_092531_CADEC_SD.PDF

ALJ Rosenow  applies Section 10(c) to calculate AWW, and finds continuing hyperhidrosis condition to be related to work..

Excerpts


AWW

Claimant urges that his AWW should be calculated based on the $20 per hour he
was being paid by Employer at the time of his injury. He states that because Claimant did
not work substantially the whole year prior to his accident, Section 10(c) is the proper
framework for calculating AWW. Employer agrees that using Section 10(c) is proper, but
that Claimant’s AWW should be based on his earnings during 2007 prior to the injury,
which totaled $11,922.75, for an AWW of $243.39. In the alternative, Employer argues
that I should average Claimant’s earnings for 2005-2007 in order to find the appropriate
AWW. Claimant has received TTD benefits in the amount of $493.34 since 25 Feb 08,
based on an AWW of $740.00.

Claimant only worked for Employer on eleven days prior to the accident, and was
paid $20 per hour, for a gross income of $1,380 from that position. Due to the nature of
his employment as a contract electrician, he worked for numerous employers during the
previous year, had some self-employment earnings, and also collected unemployment for
a time. I agree with Employer that due to Claimant’s unique employment history, the
most accurate way to calculate AWW is to survey his earnings in multiple previous years.
According to a Social Security statement of earnings records, in calendar year 2005,
Claimant earned $39,942.61. In 2006, not including $1,967 received as unemployment
compensation, Claimant earned $47,934.10. In calendar year 2007, not including $5,482
received as unemployment compensation, Claimant earned $22,628.75. Averaging the
AWWs of those three years yields a figure of $707.73 and a compensation rate of
$471.82.
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