Short-Term Job Yields Average Wage for Widow in Death Case

One of the few issues upon which there is agreement before a workers’ comp Hearing is the Average Weekly Wage (“AWW”). Even in cases where every single other issue is in dispute, the earnings records of a disabled employee usually are not in controversy, according to Sterling and Herndon Virginia workers comp lawyer Doug Landau.  Nevertheless, there are cases where the earnings history is not so clear cut.

In a case ruled upon by the Virginia appellate court, a worker whose job involved regularly installing residential porch railings, but who accepted a short-term job to complete the roof and siding on an industrial building, had his average weekly wage set at $48.08, based on the $2,500 pay rate for the short-term job. The Supreme Court of Virginia affirmed a decision awarding death benefits to the widow of the man, who died in a work-related fall.

Virginia Code § 54.2-101(1) uses a four-step analysis to define the term “average weekly wage.” Claimant argues this case is governed by our decision in Uninsured Employer’s Fund v. Thrush, 255 Va. 14 (1998), in which a worker was hired for one day of work, painting power poles in a parking lot. We determined the claimant had the expectancy of a payment of $42 for the seven-hour day for which he was employed. That figure, we held, was the only basis provided by the evidence for computing his average weekly wage, resulting in an award of $42 per week.

The present case differs from Thrush in a fundamental respect.

Thrush was employed for a fixed period of time — one day. The employee in this case was hired to perform a job for a fixed price. His compensation would have been the same whether he completed the job in four days or 52 weeks. Thus, Thrush does not apply here.

Here, the parties were offered an unusual opportunity to reopen the case before the deputy commissioner to supplement the very limited evidence in the record concerning the applicable average weekly wage. The burden of proof is on claimant at every step of the decision making process. Claimant failed to carry the burden of proving that any basis existed for computing decedent’s average weekly wage beyond the fact of his single transaction with employer here.

Decedent had never worked previously in the metal roofing and siding occupation, and there was no evidence he would ever do so in the future. He had never worked for the person who hired him before and there was no evidence that any future employment was contemplated by either of them. Their engagement was for a single project.

Under those circumstances, it would manifestly not be “fair and just to both parties” under Code § 65.2-101(1)(a) to impose on the employer an award based on the assumption that the employee was hired for a continuing wage of $2,500 per week.