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The 52 Weeks of Christmas

Robert Gruber

Few things in workers’ compensation law generate as much dispute as how to compute ending a claimant’s average weekly wage when the claimant is working a concurrent and part-time job.  Consider, for example, a claimant who was hired for a part time; second job almost a year to the day prior to the injury she had while working for you.  She worked a total of 28 weeks on this part time job prior to her injury and earned a total of $7,345.80 from the time she started her part time job up until her injury.  It would be insanely unfair to take the claimant’s total earnings from that second job ($7,345.80) and divide them by the actual number of weeks she worked (28). This would produce an average weekly wage of $262.35 which, if multiplied times 52 weeks, which show that the claimant earned $13,642.20 per year from her part-time job when she actually only earned $7,345.80.  But, this is exactly what happened recently in a case before a Single Commissioner which was, thankfully, reversed at Full Commission (Juanita Jackson v. South Carolina Disabilities and Special Needs/State Accident Fund).

The basic statutory rule for computing an average weekly wage is S.C. Code Ann. Section 42-1-40. Here are the basic requirements of this section (not quoted verbatim):

  1. The average weekly wage must be calculated by taking the total wages paid for the last four quarters immediately preceding the quarter in which the injury occurred as reported on the Department of Employment and Workforce’s Employer Contribution Reports divided by fifty-two or by the actual number of weeks for which wages were paid, whichever is less; or,
  2. When employment prior to the injury extended over a period of less than fifty-two weeks, the  earnings may be divided by the number of weeks in parts thereof during which the employee earned wages as long as the results are fair and just to both parties; but,
  3. Where by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impracticable to compute the average weekly wage as defined in this section, “regard is to be had” to the average weekly amount which during the fifty-two weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community;
  4. Finally, when, for exceptional reasons, the foregoing would be unfair either to the employer or employee, the parties may use “such other method” of computing average weekly wages which will “most nearly approximate” the amount which the injured worker would be earning were it not for the injury.

The Full Commission focused on two things when it reversed the Single Commissioner and concluded that the claimant’s concurrent earnings should be divided by 52 weeks instead of 28. First, there was no evidence in the record that the claimant’s injury affected the number of weeks she worked on her second job.  While it is true that she did not work at all following her injury (March 1, 2013), there were large gaps of time prior to her date of injury during which she did not work her secondary job due to personal or scheduling problems. The claimant began her second job on March 4, 2012 (almost exactly 52 weeks prior to her date of injury) and was “available” to work a secondary job but for personal reasons. The statute refers to the period of “employment” prior to the injury, not hours worked or weeks paid.  Second of all, the Full Commission noted the obvious fundamental unfairness to the employer where the claimant’s actual earnings effectively doubled by division with no evidence that the claimant would have earned more per week but for her injury.

This is the time of year when you are likely to see concurrent employment, and the claimant is unlikely to have a full 52 weeks in that “second” job.  Just remember fairness and common sense.  If the claimant or their lawyer presents a calculation that has the claimant earning more per week in that second job than they actually did, there is a problem, and also remember to have a wonderful holiday season and to call us with any questions.