Excerpt
Analysis
Employer’s argument that Claimant drifted in and out of total disability, depending on
what his work schedule would have been in the absence of his injury, misapprehends the
fundamental policies that underlie the Act and interpreting case law. The calculation of the
average weekly wage accounts for pre-injury work schedules. In this case, the annual wage was
$229,500. The record shows that he was only paid for periods that he worked, which was, on
average, half of each year. That would have resulted in an effective annual wage of $114,740.
That figure, divided by 52, yields an average weekly wage of $2,206.73, which in turn, results in
a total compensation rate greater than the maximum of $1,256.84 which was stipulated to by
Employer. Thus, the fact that Claimant had every other four months off is reflected in the
average weekly wage.
Employer’s observation that during the off-duty periods Claimant had no duties that he
was required to perform and was therefore not disabled, may be accurate from a very basic
logical perspective, but fails to take into account the full legal context. Because of his covered
injury, he could no longer do the job for which he was hired. That there were times he had no
tasks that he was unable to perform is not significant. There is no indication that during his
four months off, he was not free to engage in other employment. Until such time as Employer
establishes suitable alternative employment, Claimant remains just as totally disabled during
what would have been his off duty periods as he is during the balance of the year.
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