Opinion
C.A. No. 03A-04-002 RRC
Submitted: September 16, 2003
Decided: November 17, 2003
Gary S. Nitsche, Esquire and W. Christopher Componovo, Esquire, Attorneys for Appellant.
Francis X. Nardo, Esquire, Attorney for Appellee
Gary W. Alderson, Attorney for the Employee
Gregory R. Babowal, Attorney for the Employer
ORDER
1. Velvet J. Howard ("Appellant") appeals from a decision rendered on March 27, 2003 by the Industrial Accident Board ("the Board") determining that Appellant's average weekly wage for total disability benefits purposes would be calculated based upon her average weekly wage at Peninsula United Methodist Homes, Inc. ("Appellee") without regard to wages earned by Appellant at her concurrent full-time employment with another nursing facility known as Stonegates.
By agreement of the parties, this case was heard before the Board by an Industrial Accident Board Hearing Officer. See DEL. CODE ANN. tit. 19 Del. C. § 2301B(a)(4) (Supp. 2002). A copy of the Hearing Officer's decision can be found appended to this opinion at http://courts.state.de.us/superior/order_civil/ orders_civil03_nov.htm.
2. Appellant and Appellee had previously agreed that Appellant was entitled to total disability for a limited period of time and that various medical bills would be paid by Appellee on Appellant's behalf.
3. The parties agree that there are no facts in dispute. The only legal issue Appellant presented to the Board and which she now presents to this Court for de novo review was her argument that her average weekly wages from working at the facilities of both Stonegates and Appellee should be combined for determining the wages to be paid her.
See DEL. CODE ANN. tit. 19 Del. C. § 2324 (1995) (providing that "[f]or injuries resulting in total disability . . . the compensation to be paid . . . shall be 66 2/3% of the wages of the injured employee . . ."); § 2302 (providing that the term wages "means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident").
4. After conducting a thorough review of the case law in the area of total disability compensation where a claimant has concurrent employment, the Board held that the Delaware Supreme Court had previously ruled in Peterman v. L.D. Caulk that workers' compensation claimants are "entitled only to have their compensation based on their full-time earnings in the jobs where they were injured" and that "there [wa]s no basis to justify a departure from th[at] . . . Court's conclusion."
No. 72, 1992, 1992 WL 219072 (Del. Aug. 19, 1992).
Id. at *2.
Velvet J. Howard v. Peninsula United Methodist Homes, Inc., IAB Hearing No. 1219815, at 4 (Mar. 27, 2003).
5. The Delaware Supreme Court in Peterman, supra, held that "[t]he statute is very clear — wages are the `money rate . . . under the contract of hire,' and speaks in terms of the `employer at the time of the injury'" so that "[n]owhere in the statutorily specified calculations is there either expressly or impliedly a directive to combine wages from concurrent jobs[,]" the practical effect of which is to limit compensation to a calculation based on full-time earnings from the job where a claimant is injured.
Peterman 1992 WL 219072 at *2.
6. Appellant's primary arguments on appeal are that "the time is ripe for a change of the law" and that, because many persons now hold more than one job, "a more realistic approach to analyzing what one should receive . . . requires a combination of wages from any and all jobs being worked at the time of injury."
Appellant's Opening Br. at 7.
Id. at 8.
7. This Court defers to the Supreme Court's previous construction of the primary statutes at issue here (title 19, sections 2324 and 2302) as being "very clear" and otherwise supporting the Board's well-reasoned decision determining that Appellant's wages for purposes of calculating total disability benefits must be determined based solely upon her compensation from Appellee.
8. No error of law having been committed, this Court AFFIRMS the Board's March 27, 2003 Decision on Petition to Determine Compensation Due.
IT IS SO ORDERED.
DECISION ON PETITION TO DETERMINE COMPENSATION DUE
CHRISTOPHER F. BAUM, Workers' Compensation Hearing Officer
Pursuant to due notice of time and place of hearing served on all parties in interest, the above-stated cause, by stipulation of the parties, came before a Workers' Compensation Hearing Officer on March 7, 2003, in a Hearing Room of the Board, in New Castle County, Delaware. Because a written decision could not be reached within fourteen days of the hearing, an extension of time was taken pursuant to DEL. CODE ANN. tit. 19 Del. C. § 2348(k).
NATURE AND STAGE OF THE PROCEEDINGS
On November 1, 2002, Velvet J. Howard ("Claimant") filed a Petition to Determine Compensation Due pertaining to an injury she incurred while working as a Certified Nursing Assistant ("CNA") at the Methodist Country house for Peninsula United Methodist Homes, Inc. ("PUMH"). PUMH agrees that Claimant was injured in a compensable work accident and it has agreed to pay her medical expenses and to compensate her for a period of total disability. The issue in dispute is Claimant's proper compensation rate. It is also agreed that Claimant's wage at PUMH at the time of the accident was $420.00 per week.
Claimant, however, maintains that she was also working as a CNA at another facility, where she was paid $12.00 per hour for thirty-two hours per week. Claimant argues that her second employment is part of her earning capacity and, therefore, the wages from her second job should be combined with those of her PUMH employment in order to calculate her compensation rate. PUMH disagrees.
The parties stipulated that the case could be heard and decided by a Workers' Compensation Hearing Officer, in accordance with title 19, section 2301B(a)(4) of the Delaware Code. When hearing a case by stipulation, the Hearing Officer stands in the position of the Industrial Accident Board. See DEL. CODE ANN. tit. 19 Del. C. § 2301B. A hearing was held on Claimant's petition on March 7, 2003. This is the decision on the merits.
SUMMARY OF THE EVIDENCE
Claimant testified that she started working full time as a CNA for PUMH in April of 2002, working the 3:00pm to 11:00pm shift. In May of 2002, Claimant also secured additional employment as a CNA at another care facility known as Stonegates, which is located a short distance from PUMH. She generally worked eight-hour shifts at Stonegates, four times a week. She would work the 11:00pm to 7:00am shift. The days she worked at PUMH and Stonegates were staggered, so she did not always work both jobs on the same day.
On September 9, 2002, while working at PUMH, Claimant went into a resident's room to take care of a patient. While she was leaning over the patient, the patient reached up for a traction bar suspended over his bed. The patient pulled on the bar and struck Claimant on the head, causing her injury. As a result of the injury, she was unable to work for either PUMH or Stonegates for a time. Claimant understands that PUMH now has a position available for her within her restrictions. She does not know whether Stonegates has a restricted position for her.
Claimant agreed that Stonegates is a separate employer from PUMH. They are separate companies, with separate paychecks. Her supervisors are different for each employer, and neither employer can direct her activities while she is working for the other. Claimant stated that her coworkers at PUMH knew that she was working at Stonegates. Her PUMH supervisor was also aware of it because Claimant had to decline working a second shift at PUMH because of her Stonegates job. Claimant agreed, though, that she did not formally give notice to PUMH that she was also employed at Stonegates. Stonegates was aware that Claimant was working at PUMH, because she could not be at Stonegates promptly at 11:00pm on nights when she worked at PUMH until 11:00pm. Claimant is not aware that either employer has a policy against such double employment.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Introduction
Claimant argues that her compensation rate should be calculated from the combined wages she made at PUMH and Stonegates, because the work injury disabled her from working at both employers. In one sense, this issue could be quickly resolved. The Delaware Supreme Court has previously ruled that, when an injured employee has earned two weekly wages, the compensation rate must be based only on the full-time wage of the job where the employee was injured. See Peterman v. L. D. Caulk, Del. Supr., No. 72, 1992, Moore, J., 1992 WL 219072 at ¶ 7 (August 19, 1992)(ORDER)("Nowhere in the statutorily specified calculations is there either expressly or impliedly a directive to combine wages from concurrent jobs."). See also State v. Muehleisen, Del. Super., C. A. No. 97A-04-002, Toliver, J., 1998 WL 733754 at **3 (June 18, 1998) (noting that wages from full-time and part-time jobs should not be combined to determine weekly wage). Claimant, however, argues that, even since the Court issued the Peterman decision in 1992, the work world has changed so that more people are working two jobs. Because the intent of the workers' compensation system is to compensate an injured worker for that worker's lost earning capacity, Claimant asserts that the issue should be revisited.
As discussed below, having reviewed the statutory language and the applicable case law, I find that there is no basis to justify a departure from the Peterman Court's conclusion. If the policy considerations urged by Claimant are to become law in Delaware, it must be through a statutory change effected by the legislature. The current statute simply does not permit the result that Claimant seeks.
Statutory Definition
The weekly compensation rate paid for certain benefits under the Workers' Compensation Act ("Act") is grounded in the injured employee's weekly "wages." Thus, generally speaking, compensation for total disability and for permanent injuries is paid at the rate of 66 2/3% of the "wages" of the injured employee. DEL. CODE ANN. tit. 19 Del. C. § 2324, 2326. Partial disability compensation is paid at the rate of 66 2/3% of "the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter." DEL. CODE ANN. tit. 19 Del. C. § 2325 (emphasis added).
The Act provides both an upper and lower cap on the compensation rate for total disability and permanent injuries. DEL CODE ANN. tit. 19, §§ 2324, 2326(h). Partial disability compensation only has an upper cap. DEL. CODE ANN. tit. 19 Del. C. § 2325. These caps are not implicated in the current discussion of what is to be included in an employee's wages, but they could serve to limit an employer's liability in any particular case.
The Act provides a definition of the term "wages," which is where any analysis of the current issue must begin:
(a) The term "wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. . . .
(b) If the rate of wages is fixed by the day or hour, the employee's weekly wages shall be taken to be that rate times the number of days or hours in an average work week of the employee's employer at the time of the injury. If the rate of wages is fixed by the output of the employee, then the employee's weekly wage shall be taken to be the employee's average weekly earnings for so much of the preceding 6 months as the employee has worked for the same employer. If, because of exceptional causes, such method of computation does not ascertain fairly the earnings of an employee, then the weekly wage shall be based on the average earnings for 6 months of an average employee of the same or most similar employment.
DEL. CODE ANN. tit. 19 Del. C. § 2302(a) (b).
It has generally been acknowledged that the language in this section is ambiguous. Furrowh v. Abacus Corp., 559 A.2d 1258, 1259 (Del. 1989); Howell v. Supermarkets General Corp., 340 A.2d 833, 836 (Del. 1975); Muehleisen, 1998 WL 733754 at **2. Because of this ambiguity, it has been left to various court decisions, both on the Supreme Court and Superior Court levels, to provide an interpretive structure. Most of these cases involve the issue of part-time employment. Consideration of these cases throws light on the current issue.
Admittedly, in Rubick v. Security Instrument Corp., 766 A.2d 15 (Del. 2000), the Supreme Court stated that the first two sentences of subsection (b) "are readily understandable" and that it was only the third sentence, dealing with "exceptional causes" that was ambiguous. Rubick, 766 A.2d at 18. However, the Court in that case was only asked to opine concerning the "exceptional causes" provision. If the Court had been asked to give detailed consideration to the first sentence of subsection (b), the Court would almost certainly have concluded that it, too, is ambiguous, as will become evident later in this opinion.
Part-time Employment Cases
It has been observed that the Act does not discuss compensation geared toward part-time earnings. "The statute nowhere provides for compensation benefits based on part-time employment." Fitzgerald v. Roy's Flying `A', 266 A.2d 193, 194 (Del.Super. 1970), aff'd, Del. Supr., No. 86, 1970 (November 9, 1970) (reported at 559 A.2d 1261). See also Howell v. Supermarkets General Corp., 340 A.2d 833, 836 (Del. 1975).
In Fitzgerald, an employee held both a full-time and a part-time job. He was injured at his part-time job with Roy's Flying `A' ("Roy's"), which also deprived him of his full-time employment. Fitzgerald, 266 A.2d at 194. The part-time employer compensated the injured employee based on a weekly wage of $24.33, which was calculated by averaging three weeks of the employee's wages at Roy's. Fitzgerald, 266 A.2d at 194. The employee, citing section 2302, argued that the proper calculation was to take his hourly rate and multiply it by the number of hours in Roy's average work week. Roy's disputed this approach, noting that it would have the result of compensating a part-time employee on the basis of full-time wages. The Superior Court found that such a result was intended by the statutory language. "The policy of 19 Del. C. § 2302 is that earnings be translated into a `weekly wage'. . . . [T]he statute bases the `weekly wage' not on the number of days or hours actually worked by the employee but on the days and hours in the employer's `average work week.'" Fitzgerald, 266 A.2d at 194. The Court noted that this was appropriate, not only because the employee also lost his other full-time employment, but also because "the purpose of the statute is to compensate the employee for his loss of earning capacity" rather than his actual loss of pay. Fitzgerald, 266 A.2d at 194 (citing Stanley Warner Corp. v. Slattery, 235 A.2d 633, 634-35 (Del.Super. 1967)).
About five years after Fitzgerald, the Supreme Court clarified that the fact that the employee actually had two jobs was irrelevant to the result. In Howell v. Supermarkets General Corp., 340 A.2d 833 (Del. 1975), the Court quoted with approval a New Jersey case dealing with a similar statute, in which the court observed that "the legislative decision was to deal with a constructed weekly wage rather than the actual wage paid during a week for part-time work." Maver v. Dwelling Managers Co., 170 A.2d 35, 36 (N.J. 1961) (quoted in Howell, 340 A.2d at 836). In Howell, the Board, relying on Fitzgerald, computed a part-time cashier's compensation based on a forty-hour work week. The employer argued that Fitzgerald should not apply because, in Fitzgerald, the injured worker worked both a full-time and a part-time job, while in Howell he was only a part-time employee. The Supreme Court disagreed, noting that the presence of two jobs in Fitzgerald was "not the determinative factor in the proper construction of the Statute. The controlling factor is the legislative intent to compensate the employee for his loss of earning capacity — not loss of wages earned." Howell, 340 A.2d at 836.
Another aspect of the Fitzgerald decision clarified what was meant by the concept of the "employer's average work week." In Fitzgerald, the employer argued that looking at the hours that a business remained open (i.e., the employer's average hours of operation rather than the work week of any employee of that employer) led to absurd results. "If a part-time employee in an all-night coffee shop sustains an injury, should he then be compensated on the basis of his hourly wage rate times 168 hours?" Fitzgerald, 266 A.2d at 195. Any 24-hour a day/7 days a week business could be said, in one sense, to have a "work week" of 168 hours. This would, of course, be far beyond the "earning capacity" of any human being and thus contrary to the perceived goal of section 2302 to compensate an injured employee based on that employee's lost earning capacity.
The Fitzgerald Court believed that the absurdity could be avoided by reference to the last sentence of section 2302(b).
That sentence provides that if because of exceptional causes the method of computation in the first sentence does not ascertain fairly the employee's earnings, then the weekly wage shall be based on the average earnings for six months of an average employee of the same or similar employment. In such a case then, the employee would be compensated on the same basis that an average full-time employee would be compensated at, most likely on a forty or forty-eight hour week.Fitzgerald, 266 A.2d at 195. In this fashion, the focus changed from the "work week" of the business itself to the average work week of the employees of the business.
As will be seen, in light of Rubick, Fitzgerald's reliance on the "exceptional causes" language was misplaced. However, this does not change the fact that using the hours that a business is open to calculate an employer's average work week quickly leads to absurd results. When interpreting statutory language, the courts should avoid interpretations that lead to absurdities. See Coastal Barge Corp. v. Coastal Zone Industrial Control Bd., 492 A.2d 1242, 1246 (Del. 1985) ("Ambiguity may also arise from the fact that giving a literal interpretation to words of the statute would lead to such unreasonable or absurd consequences as to compel a conviction that they could not have been intended by the legislature."). Thus, although the actual rationale used in Fitzgerald has been stripped away by Rubick, the statutory phrase "average work week of the employee's employer" should still be interpreted to mean the average work hours of the employees of the employer, rather than the hours of operation of the business.
The term "average work week" was further refined in Furrowh v. Abacus Corp., 559 A.2d 1258 (Del. 1989). In that case, the employer argued that "the correct way to calculate [the employee's] weekly wages for compensation was to multiply her hourly rate of pay by the hours of an `average work-week' arrived at by averaging the weekly hours of all of its security employees, both part time and full time." Furrowh, 559 A.2d at 125 8-59.
The Supreme Court disagreed.
Any method of calculating an employer's average workweek which includes part-time workers will not result in full compensation of an employee for his lost earning capacity — the goal of 19 Del. C. § 2302 (b). See Howell v. Supermarkets Gen. Corp., 340 A.2d at 836. In this case, for instance, although Furrowh was capable of working full time at Abacus, because no full-time position was available she was only working part time at the time of the accident, and she averaged only 28.26 hours per week. Thus, she worked, and earned, considerably less than her capability, that of a full-time, 40-hour per week security guard. Yet under the employer's system of computing its average workweek, Furrowh would be compensated for her loss based on an average workweek of 23.46 hours, even fewer hours than she was actually working as a part-time employee at the time of the accident. It is illogical to contend that this rate compensates Furrowh for her lost earning capacity when it does not even adequately compensate her for the hours of employment she actually lost. It is evident that if the employer's method of calculating its average workweek were used, the employee would not be fairly compensated for her lost earning capacity.Furrowh, 559 A.2d at 1260. The Court went on to observe that, if the employer's approach were correct, then even when a full-time forty-hour-per-week worker was injured, that worker could only be compensated based on an "average work week" of 23.46 hours. Furrowh, 559 A.2d at 1260 n. 2. The "average work week" calculation applies to all injured employees, not just the part-time ones. Just as the Fitzgerald Court highlighted the absurdity of doing the calculation using the business' hours of operation as a measure, the Furrowh Court's observation highlighted the absurd result if the statutory phrase "average work week of the employee's employer" meant a single average of both part-time and full-time workers. The Court concluded that the "appropriate way to determine the `weekly wages' of a worker, in light of the policy which informs § 2302(b), is to recompense any employee capable of working full time based on the rate the employer pays a full-time worker." Furrowh, 559 A.2d at 1261 (emphasis in original).
Exceptional Causes
Furrowh's insistence that the injured employee had to be "capable" of working on a full-time basis highlights another line of cases that perceived an inequity in always using the employer's average work week to calculate a part-time employee's compensation rate. This perceived inequity generally occurred in cases where the injured employee would not have been available to work on a full-time basis even if no injury had occurred.
For example, in Stanton Lighting Corp. v. Bernstein, 316 A.2d 560 (Del.Super. 1973), the injured worker was a full-time college student. He was therefore not available for full-time work "during the entire period of disability." Stanton Lighting, 316 A.2d at 561. The Superior Court relied on the "exceptional causes" provision contained in the last sentence of section 2302(b) and decided that, under such circumstances using a full-time weekly wage would not ascertain fairly "the earnings of the employee." Stanton Lighting, 316 A.2d at 562.
Likewise, the Superior Court refused to use a full-time work week when the evidence established that the injured worker never intended to work full time and work chose to restrict herself to part-time work. Spicer v. State, Del. Super., C.A. No. 91A-03-3, Gebelein, J.. 1991 WL 190334 at *2 (August 23, 1991).
The purpose of wage calculation is not to arrive at some theoretical concept of loss of earning capacity; rather it is to make a realistic judgment on what the claimant's future loss is in the light of all the factors that are known. One of these factors is the established fact of claimant's choice of a part-time relation to the labor market. If this is clear, and above all if there is no reason to suppose it will change in the future period into which the disability extends, then it is unrealistic to turn a part-time able-bodied worker into a full-time disabled worker.Spicer, at *2 (quoting Larson, Workmen's Compensation Law, § 60.21, at 10-127). The Spicer Court also relied on the "exceptional causes" provision, deciding that, under the circumstances, to award full-time compensation to the injured worker would inflate her benefits beyond what she ever intended to earn. Spicer, at *2. See also Glasgow Thriftway v. Donovan, Del. Super., C.A. No. 90A-09-2, Gebelein, J., 1991 WL 269888 at **3 (November 14, 1991) (claimant had a "consistent willingness to participate in the labor market on a part-time basis only"), aff'd sub nom. Donovan v. Glasgow Thriftway, 610 A.2d 724 (Del. 1992).
However, in Rubick v. Security Instrument Corp., 766 A.2d 15 (Del. 2000), the Delaware Supreme Court reviewed the proper application of the "exceptional causes" provision of section 2302(b). Rubick involved the case of a worker whose average rate of pay over the six months preceding his accident was $12.60 per hour. However, at the actual time of the accident, he was being paid $26.72 per hour (a special "State Rate"). The Industrial Accident Board decided that, because of the "exceptional cause" of the State Rate, the higher rate did not fairly ascertain his earnings. It therefore used the lower average rate. Superior Court affirmed. Rubick, 766 A.2d at 17. The Supreme Court disagreed. The Court reviewed the history of section 2302, considering the statutory amendments over the years. The Court concluded that the "exceptional causes" provision was never meant to be applicable to all employees but, rather, was a special alternative calculation limited to ascertaining the "wages" of "output" employees. Rubick, 766 A.2d at 19.
Although Rubick did not involve the case of a part-time employee, its holding undercuts the basis for the Stanton Lighting-Spicer-Glasgow Thriftway line of cases. As such, Furrowh's insistence that the part-time worker must be "capable of working full time" before the average full-time work week is used to calculate that worker's wages may no longer be a proper interpretation of the statutory language.
Interim Summary
Before advancing to discuss in detail the rationale of the Peterman decision, it may be useful to summarize what has been established so far. The compensation rate for workers' compensation benefits stem from a calculation of what an employee's "wages" were at the time of the work accident. "Wages" is a defined term in the Act and does not necessarily mean what the injured employee was actually paid. As section 2302 is set up, subsection (a) establishes the time period that is to be looked at to find the proper "money rate" to apply (namely the rate "at which the service rendered is recompensed under the contract of hiring in force at the time of the accident"), while subsection (b) sets forth the rules to follow in order to transform this rate into a weekly wage. In cases where the employee was paid by the day or hour, that employee's "wages" are the employee's "money rate" as applied to the "average work week of the employee's employer." Case law, acknowledging that this latter phrase is ambiguous, has established that it should be read as meaning "the average work week of a full-time employee of the employer."
Of course, if the money rate under the contract of hire was already expressed as a weekly rate, no such transformation would be needed. This is why the first sentence in subsection (b) pointedly mentions that it is to be used when the rate is fixed "by the day or hour." Admittedly, the statute is silent about if the employee is paid an annual salary. However, as there are fifty-two weeks in the year, an appropriate weekly rate can be determined by simple division. It is only when the wage rate is less than a week that problems can occur. Knowing the hourly rate does not automatically lead to a calculation of a weekly rate. One must first know how many hours there are in the work week. Determining this is the province of subsection (b).
It must also be admitted that the judicial interpretation of the term "average work week," to some extent, creates a circular argument. when calculating the "average work week" of the employer, the hours of part-time employees are not to be considered, because that would devalue the hours of the full-time employees. To be able to exclude "part-time" employees from the calculation, one must know who the "full-time" employees are. However, the only way to know who truly works "full-time" is to know what the employer's work week is. In other words, you would have to know the length of the employer's average work week to decide who qualifies as a full-time employee, then look at the hours of those full-time employees to calculate what the average work week of the employer is. However, in common parlance, full-time work is generally considered to be at least thirty-five hours a week (seven hours per day for five days). In most cases, employees working thirty-five or more hours would be considered full-time, while those working less than thirty-five hours would, at least arguably, be considered part-time. Clearly, this approach may not work in all cases, such as the rare case where the business itself is not open thirty-five hours a week. In such cases, it presumably would fall within the Board's discretion to decide which workers' hours are to be used to determine the "average work week" of the employer.
In addition, even with the judicial constructions that have been rendered, ambiguities remain in applying the statute. For example, even if one can decide which employees qualify as "full-time employees" for purposes of calculating the employer's average work week, it is not clear which full-time employees should be considered. Claimant in this case is a CNA, but it is likely that PUMH also employs such people as clerical and janitorial staff. Would an average work week be only the average week of a similar employee to the injured one, or are all full-time employees considered? If the latter, this carries some of the problems that arose with the inclusion of part-time employees. A particular class of employees might work longer "full-time" hours than another class. To include both in the "average" would drag down the number of hours worked by the first class, potentially under compensating an injured employee in that class. Likewise, it might drag up the "average" hours of an employee in the second class, potentially over-compensating that employee beyond the true "earning capacity" of the position. The "exceptional causes" sentence in subsection (b) refers to "the same or most similar employment," which would support using only the same class of employees, but, since Rubick, it is not proper to rely on this sentence for purposes of interpreting the first sentence of subsection (b).
The judicial interpretations also do not clarify how long a time should be considered in determining the employer's average work week. While the "output" and "exceptional causes" provisions both refer to a period of six months, in light of Rubick it is not clear that the same length of time is to be used to determine the employer's average work week. Arguably, one could still refer to these six-month measures as a general indication that the legislature considers that to be a sufficient time from which to calculate an average. Nevertheless, once the "exceptional causes" clause was found not to apply to the first sentence of subsection (b), the statute no longer could be read as providing a specific length of time to be used for the calculation.
"Wages" and "Earning capacity"
Certainly, one understands the tendency of the decisions to state that the purpose of the Act is to compensate for a loss of "earning capacity" rather than actual lost wages. As the Fitzgerald Court observed, the express statutory language allows a part-time employee to be paid as if that employee were full-time. It is therefore easy to think of it as paying an employee for that employee's "capacity" to work full time. However, strictly speaking, it would be a mistake to equate the defined term "wages" with a theoretical "earning capacity." It is more accurate to state, as the New Jersey court did in Maver, that the legislature intended for an injured worker to be compensated with reference to a "constructed weekly wage." This "constructed weekly wage" is different both from the actual wages received by the injured worker and from the theoretical "earning capacity" of the employee.
An example might make this point clearer. If an employee was hurt while he was in a job that paid $7.00 per hour, that employee could not argue that his "earning capacity" was greater than $7.00 per hour simply because he could point to another business with whom he was not employed that would have paid more for the same services. Even though another business might have paid more, and therefore the employee's theoretical "earning capacity" was greater, the definition of "wages" contained in the Act requires that the pay rate be grounded in what was actually in effect "under the contract of hiring," rather than under some theoretical contract. DEL. CODE ANN. tit. 19 Del. C. § 2302(a). Although its reliance on the "exceptional causes" language has been undermined by Rubick, the policy rationale quoted by the Superior Court in Spicer is still accurate. "The purpose of wage calculation is not to arrive at some theoretical concept of loss of earning capacity; rather it is to make a realistic judgment on what the claimant's future loss is in the light of all the factors that are known." Spicer, at *2.
The statutory instructions for calculating partial disability compensation point to the same conclusion. Partial disability is calculated as a percentage of the difference between an employee's "wages" before the injury and "earning power" after the injury. DEL. CODE ANN. tit. 19 Del. C. § 2325. The term "earning power" and "earning capacity" are synonymous. Ruddy v. I. D. Griffith Co., 237 A.2d 700, 703 (Del. 1968). Thus, the statute does not compare an employee's pre-injury earning capacity with that employee's post-injury earning capacity, but rather compares the constructed weekly wage established by section 2302 with the employee's post-injury earning capacity. "[W]hen different terms are used in various parts of a statute, it is reasonable to assume that a distinction between the terms was intended." C T Associates, Inc. v. Government of New Castle County, 408 A.2d 27, 29 (Del.Ch. 1979), quoted in Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982) (en banc).
Claimant's Position
Claimant argues that the line of cases in which a part-time employee is paid full-time wages is just the mirror image of her request. This is not accurate. Claimant requests that her "wages" include her pay at both her full-time job and her part-time job. The cases discussed above did not compensate injured part-time employees for both employments. Indeed, as observed in Howell, whether the part-time employee even had a second job was irrelevant to the calculation of "wages." The cases calculated a constructed weekly wage based on the pay rate (or, as section 2302(a) phrases it, the "money rate") from the part-time job as applied to the "average work week" of the part-time employer. Loosely speaking, the part-time employee was paid as if that employee was a full-time worker for the part-time employer. What the injured worker was paid at any other employment he or she might have had was not factored into the calculation. Compensation was based on both the "money rate" and the average work week of the employer for whom the employee was working at the time of the injury.
The focus of the cases considered so far was primarily on the concept of the "average work week." The definition of "wages," however, not only involves consideration of the length of the work week, but also the "money rate" to be applied. This is really where Claimant's argument applies: that the term "money rate," which is then to be applied to the "average work week," should be calculated from a combination of the rate of pay from PUMH and the rate of pay from Stonegates.
Claimant observes that a respected treatise in the field, Larson's Workers' Compensation Law, endorses the concept of combining the earnings of concurrent employments to determine the wage basis for workers' compensation benefits. The treatise states that the majority of jurisdictions allow some form of combination when the employee works two jobs. Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law, § 93.03 (internet ed.; accessed March 2003)www.matthewbender.com. The basic policy rationale is that workers' compensation is supposed to compensate an employee fairly for a lost earning capacity. If an employee works two jobs concurrently and a workplace injury disables that employee from working both jobs, compensating the employee based on only the earnings from one employer effectively leaves the employee uncompensated for the loss of the other set of earnings. "When aggregation of wages from concurrent employments is disallowed, the effect . . . is often to relegate the claimant to a part-time wage basis, although his or her actual earnings have been that of a full-time worker." Larson, supra, at § 93.03[1][g].
The treatise notes that jurisdictions differ on whether the concurrent employments need to be "similar." The treatise is strongly against making such a distinction. Larson, supra, at § 93.03[1][c] (similarity requirement is "unnecessary from the point of view of statutory construction, unsound as a matter of accomplishing the purposes of the legislation, inhumane from the point of view of the claimant, and logically absurd as to the distinctions on which it is based"). Occasionally, Delaware case law alludes to the distinction. See, e.g., Muehleisen, 1998 WL 733754 at **3 ("wages from dissimilar full time and part time employment should not be combined"). Indeed, it was a part of the arguments made in Peterman. As will be seen, however, the Peterman Court did not base its decision on the distinction. Thus, it does not play a part in Delaware's refusal to combine earnings from concurrent employers.
Peterman Decision
This brings us back to the Peterman decision, which addresses the question of the proper "money rate" to use. That decision actually involved two cases, both of which involved an employee who worked both a full-time and a part-time job, and was injured at the full-time job. In each case, the Industrial Accident Board refused to combine the wages from the two jobs because it found the jobs to be "dissimilar." The Superior Court found that, as a matter of law, wages from two jobs, whether similar or not, could not be combined. Peterman, at ¶ 4. The claimants appealed to the Supreme Court, arguing that the "exceptional causes" language in section 2302(b) permitted the combination, which would be consistent with the Act's purpose in allowing recovery of earning capacity.
The Supreme Court disagreed. "[T]here is nothing at all in the language of section 2302 that permits wages from two separate jobs to be combined. The statute is very clear — wages are the `money rate. . . . under the contract of hire,' and speaks in terms of the `employer at the time of the injury.'" Peterman, at ¶ 7. From the context, it appears that the Court considered the phrase "at the time of the injury" in the first sentence of section 2302(b) to modify the term "employer." This is consistent with the rule of statutory construction that, when no contrary intention appears, qualifying phrases refer solely to the last antecedent. See Rubick, 766 A.2d at 18 (citing Norman J. Singer, 2A Statutes and Statutory Construction § 47.33 (6th Ed. 2000)). The Peterman Court then concluded that the only "money rate" to be considered would be that of the employer for whom the employee was working at the specific time of the injury (i.e., the employer liable for the workers' compensation benefits). It noted that, even under the "exceptional causes" provision, the injured worker's "wages" is to be determined by the "`weekly wage of an employee of same or similar employment,' not a wage rate determined by combining the wages from two separate jobs. The statute is not broad enough to permit the construction urged by the claimants without torturing its clear language." Peterman, at ¶ 8.
To bolster its conclusion, the Court further noted that the Act does specifically provide for special cases when money received from another employer would be considered in determining an employee's wages, namely the case of volunteer firefighters and the case of joint employment. "Since the General Assembly has provided for the creation of an artificial weekly wage based upon multiple employments in two separate and specific situations, it is clear that the legislature did not intend to provide for combined wages in cases like the claimants here." Peterman, at ¶ 8.
Conclusion
Having considered the history of the "wages" definition, and the variety of cases that have attempted to clarify the inherent ambiguities in the statutory language, I am convinced that the Court's construction in Peterman is correct. Section 2302(a) states that the term "wages" refers to "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident." DEL. CODE ANN. tit. 19 Del. C. § 2302(a) (emphasis added). Likewise, subsection (b)'s reference to the "employer at the time of injury" does appear to be specific limiting language concerning which employer's average work week is to be applied. Thus, both subsections emphasize that the calculation of "wages" is to be based on the pay rate, average work week and employer at the time of the accident. This correlates with the fact that, elsewhere in the Act, combining multiple employers is expressly permitted in specific situations.
Claimant argues that Peterman's reference to volunteer firefighters is an incorrect analogy. A volunteer firefighter has no earnings as a firefighter. Accordingly, the legislature enacted a provision for injured firefighters where the "wage of volunteer firefighters on which compensation is based shall be the wage received in the regular employment of such firefighters." DEL. CODE ANN. tit. 19 Del. C. § 2312(c). Thus, there is no true dual employment. This argument misses the point, though. If the statutory definition of wages included the concept of combining pay rates from concurrent employment, there would be no need for section 2312(c). All the legislature would have needed would be section 2312(a), which states that, for purposes of the Act, "volunteer firefighters shall be treated as State employees. . . ." DEL. CODE ANN. tit. 19 Del. C. § 2312(a). This provision makes the firefighters' regular employment "concurrent." It is because the Act does not normally allow pay rates from concurrent employment to be combined that the legislature needed to add subsection (c).
In addition, the Peterman Court's other example, joint employment, is a proper analogy. In joint employment, an employee is under simultaneous control of both employers, performs services simultaneously for both employers, and the services performed for each employer is the same or closely related. This is distinguished from "concurrent employment," which occurs when employers act independently, the employee's work is separately allocated to each employer, the employee's services are independent and separate from each employer, and the employee does not perform simultaneously for both employers. A. Mazzetti Sons, Inc. v. Ruffin, 437 A.2d 1120, 1123-24 (Del. 1981). Under this standard and based on Claimant's testimony, it is clear that PUMH and Stonegates are concurrent employers, not joint employers.
The joint/concurrent distinction is used primarily to decide who is liable to pay for benefits. Unlike concurrent employers, in joint employment cases, both employers are liable for workers' compensation to an injured employee "in proportion to their wage liability to such employee regardless of for whom such employee was actually working at the time of injury." DEL. CODE ANN. tit. 19 Del. C. § 2354(a). Thus, in this limited area, the legislature specifically allowed the combining of wages from two employers. The Peterman Court properly took this as an expression of legislative intent not to allow such combination in other cases.
It must be pointed out that this approach only truly works if there is a specific, identifiable accident. The issue is far less clear if the injury is the result of a cumulative detrimental effect or industrial disease from concurrent employers. In such cases, it might be argued that both employments caused the injury. It is possible, in some circumstances, for "concurrent" employers to both be held liable for a compensable injury. See Sirkin Levine v. Timmons, 652 A.2d 1079, 1083 (Del.Super. 1994). In such cases, the "concurrent" employers should share responsibility for compensation as if they were joint employers. In this case, though, Claimant did have a specific, identifiable accident at PUMH, and Stonegates clearly is not liable for the injury.
I am also not persuaded by the discussion in the Larson treatise. When it gives a detailed description of the cases that allow combining concurrent wages, it is clear that those other jurisdictions have distinctly different statutory provisions. For example, Larson discusses the cases of North and South Carolina, both of which provide a list of several methods for calculating "wages," including a "catchall" provision that states that, if the listed methods would be unfair, such other method of calculation is to be used as would most nearly approximate the amount that the injured worker "would be earning were it not for the injury." Larson, supra, at 93.03[1][c]. Delaware does not have a similar catchall provision. The "exceptional causes" provision is solely for use with respect to output employees, per Rubick, and even if it were not, as the Peterman Court observed, it is not written so broadly as to allow consideration of what the injured employee's total earnings would have been but for the injury.
Another point in support of the Peterman conclusion should be noted. Section 2302 repeatedly uses only the singular term "employer," and does not ever mention multiple employers. This suggests that the legislature meant to have "wages" calculated by reference to only one employer. Cf. Rubick, 766 A.2d at 19 (legislature meant to limit the "exceptional causes" language to the "output" method of calculation because the statute only refers to "such method" rather than the plural "such methods"). The Act does expressly consider the issue of multiple employers elsewhere, such as when the issue of "joint" employment is considered. Thus, when the Act means to include multiple employers, it does.
From the above analysis, it is clear that the Peterman decision is correct and the statute, as currently written, while it sets forth a methodology for calculating a constructed weekly wage, does not allow for the combination of pay rates from multiple concurrent employers in determining Claimant's "wages" for purposes of her compensable injury. While general policy considerations might endorse such a procedure to further the goal of compensating an injured employee for a truly lost "earning capacity," a legislative change to the existing statutory language, after a proper consideration of the multiple issues pertaining to the concept of "wages" for workers' compensation purposes, is needed. While it is permissible for courts to attempt to clarify ambiguities in statutory language, it is quite another thing to ignore statutory language entirely in order to achieve a policy result. As the Court stated in Peterman, "[t]he statute is not broad enough to permit the construction urged by the claimants." Peterman, at ¶ 8.
STATEMENT OF THE DETERMINATION
For the reasons set forth above, I find that Claimant's "wages" for purposes of calculating her compensation rate with respect to her September 2002 compensable work accident must be determined solely by her pay rate at PUMH, namely $420.00 per week.
IT IS SO ORDERED.