The Plaintiff worked as a part-time nurse’s assistant, where she earned $8.00 per hour.  She received a promotion in February of 2011, where she worked full time with a single patient and earned $10.00 per hour.  On the first day in her new position, February 10, 2011, the patient pushed the Plaintiff down the stairs.  As a result of the incident, the Plaintiff sustained injuries.  Despite her injuries, the Plaintiff continued to work for the patient until May 18, 2011.  

Initially, the Industrial Commission applied the third method outlined in §97-2(5) to calculate Plaintiff’s average weekly wage. Under the third method, Plaintiff’s AWW was calculated by dividing her earnings by the number of weeks she worked prior to her injury.  The Court of Appeals found the third method did not result in a fair and just result since it was unfair to ignore the months of increased hours and pay that occurred after the injury.  The Court of Appeals remanded the case back down to the Industrial Commission with instructions to recalculate the  Plaintiff’s AWW in a manner that was fair and just.  

On remand, the Commission determined the fifth method outlined in §97-2(5) is the proper method to calculate Plaintiff’s AWW. The fifth method “allows for calculation of average weekly age by using ‘such other method’ that will ‘most nearly approximate the amount which the injured employee would be earning were it not for the injury.’”  The Commission concluded the amount which most nearly approximated what the Plaintiff would have earned if she was not injured is represented by all wages earned before and after her injury.  The Commission then divided Plaintiff’s total earnings ($10,286.88) by the total days worked (25.14 weeks) to calculate her AWW.  Defendants appealed on the basis that the Commission assigned inappropriate weight to Plaintiff’s post-injury wages.

Since method three of §97-2(5) produced unfair results and the first three methods were inapplicable to the facts of this claim, the Court of Appeals concluded the fifth method was the appropriate method to use. The dominant intent of the fifth method is to obtain results that are fair and just to both the employer and the employee while calculating the wages Plaintiff would have earned if not for her injuries.  In order to satisfy the goals of the fifth method, all wages earned, before and after her injury, part-time hours and full-time hours, must be represented.  This method was fair to Plaintiff since it took into account what she would have been earning in her new position, and it was fair to the Defendants since it also took into account the Plaintiff’s part-time period of employment.  The Court of Appeals concluded the Commission did not err in calculating the Plaintiff’s AWW.   

Practice Point

While we have been conditioned to only consider the Plaintiff’s pre-injury wages in calculating AWW, this case makes it clear that the Court is willing to use unconventional methods in order to obtain a result that is fair and just to both sides.  In cases where there are unique facts and the fifth method must be used, the Court has a lot of discretion to implement any method they see fit and use any evidence available to calculate AWW.  In this case, the Court used a “split the baby approach” and considered the Plaintiff’s peak earnings and slack earnings to calculate AWW.