Opinion
C.A. No. 00A-12-001
Date Submitted: April 25, 2001
Date of Decision: July 25, 2001
Henry C. Davis, Esquire, 207 East Market Street, P.O. Box 744, Georgetown, Delaware 19947, attorney for Claimant, Appellant;
Francis X. D. Nardo, Esquire, Tybout Redfearn Pell, 300 Delaware Avenue, Suite 1100, Wilmington, Delaware 19899, attorney for Employer-Below, Appellee.
MEMORANDUM OPINION
This case presents an appeal from the Industrial Accident Board's ("the Board") finding that Claimant's weekly wage will be based on a 40.36 hour workweek.
Twice in the decision the Board states that Claimant's weekly wage shall be based on the employer's average workweek of 40.32 hours. However, all deposition testimony describes the employer's average workweek as 40.36 hours, and the Board uses this figure three times, including in its "Statement of the Determination". The Court finds that the two instances in which the Board used the 40.32 figure were inadvertent, and that 40.36 is the correct figure found for the employer's average workweek.
PROCEDURAL HISTORY AND STATEMENT OF THE FACTS
Michael Springer ("Claimant") began working for Sigma Industries, Inc. ("Employer") in June 1998, as a "tower line" welder on towers used to support street signs. Claimant was never told that overtime was required or that it was guaranteed, but Employer expected the welders to be available for overtime, and Claimant actually worked overtime during the first four weeks of his employment. In August of 1998, Claimant began working substantially fewer than forty hours per week due to the hospitalization of his fiancee and the death of their two infants. On August 25, 1998, Claimant injured his lower back in a compensable work accident. He continued to work for several weeks following this injury, but he never returned to a normal work schedule.On November 12, 1998, Claimant and Employer entered into an agreement for total disability at a compensation rate based on a forty-hour workweek. In March 2000, they agreed on a partial disability rate of $65.56 per week, but reserved the right to argue the weekly wage amount. The parties entered into a compensation agreement for total disability benefits based on Claimant's wage of $10 per hour and a forty-hour workweek. Subsequently, the parties agreed to terminate total disability payments in favor of payments for partial disability, but both parties reserved the right to argue the appropriate weekly wage calculation.
On June 14, 2000, Claimant filed a Petition to Determine Additional Compensation Due claiming that overtime should have been included in the computation of his average workweek. A full hearing on the merits, including testimony from Claimant and a representative of Employer, was held on October 31, 2000. In a decision dated November 9, 2000, the Board granted Claimant's Petition. It found that Claimant earned $10.00 per hour at the time of the accident, and that the average workweek of Employer for all hourly employees was 40.36 hours. This figure for Employer's average workweek was determined by taking the total number of hours worked by all of Employer's employees and dividing the total hours worked by the total number of employees.
Claimant timely appealed the decision of the Board. He claims that the Board erred in determining Employer's average workweek and the resulting rate of compensation for total and partial disability.
Claimant argues that the Board's calculation of Claimant's compensation rate based on a 40-hour workweek was error, and at a minimum the workweek should have been found to be 40.36 hours. This portion of Claimant's argument is moot because the Board did not award compensation based on a 40-hour workweek, but on a 40.36 hour workweek as Claimant alternatively requests.
DISCUSSION
I. Did the Board err when it found that Claimant's average weekly wage would be based on an average workweek of 40.36 hours?The Supreme Court, and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. The function of the Superior Court on appeal from a decision of the Industrial Accident Board is to determine whether the agency's decision is supported by substantial evidence, and whether the agency made any errors of law. General Motors v. McNemar, Del. Supr., 202 A.2d 803, 805 (1964); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965). It merely determines whether the evidence is legally adequate to support the agency's findings.
The sole question to be decided by this Court is whether the Board, upon substantial evidence, was correct in determining that Claimant's wage should be calculated using an average workweek of 40.36 hours.
The purpose of providing unemployment insurance benefits is to compensate the employee for his loss of earning capacity. Howell v. Supermarkets General Corp., Del. Supr., 340 A.2d 833, 836 (1975). 19 Del. C. § 2302(b) provides the established method for calculating lost wages:
(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.
Claimant cites to Furrowh v. Abacus Corp., Del. Super., 559 A.2d 1258 (1989) (" Furrowh") to support his argument that the Board approved an incorrect figure as the average workweek of Employer. In Furrowh, the claimant settled for a part-time position with her employer because no full-time positions were available. After she was injured on the job, her employer calculated her weekly wage by using the average of all its employees, full-time as well as part-time, to arrive at an average workweek of 23.46 hours — five hours less than the claimant actually averaged per week. The Court found that this method thwarted the purpose of 19 Del. C. § 2302(b), which is to compensate a claimant for the loss of her future earning capacity. Id. at 1260. The Court then held that, under the circumstances here present, an employer may not include part-time workers in its calculation of "an average workweek' and `weekly wages' must be deemed to indicate a calculation based on full-time employment." Id. at 1261.
Employer's payroll records from February to August 1998, were provided to the Board. Claimant argued that those records showed that although Employer insisted it does not employ part-time workers, in fact, several employees regularly worked less than 37.5 hours per week. Claimant further pointed out that a few employees repeatedly worked less than 30 hours per week. He contends that the Board's inclusion of such employees in arriving at an average workweek of 40.36 hours was error because Employer may not factor part-time employees in its calculation of an average workweek.
The Court finds Claimant's argument persuasive. Employer's representative, Mr. Speier, stated at the hearing that Employer defines a full-time employee as one who works 37.5 hours per week. Employees with hours consistently below that number should be excluded for purposes of determining the Employer's average workweek, as it is settled law that part-time employees are not to be included when calculating an average workweek for an employee with a full-time earning capacity. Furrowh v. Abacus Corp., 559 A.2d 1258 at 1261. From the testimony and records of Employer, the Court concludes that Employer used all of its employees to calculate the average workweek. For example, I note that "A. Swartz" consistently worked less than 37.5 hours per week. In fact, Swartz's average workweek from February 27, 1998 to June 26, 1998, was only 23.26 hours. It is hard to conceive of any definition of "full-time" which would include so few hours per workweek. The Board may not accept the 40.36 hour figure as an accurate reflection of Claimant's average workweek without first determining that only employees working in a full-time capacity were used to calculate the figure. Accordingly, the Court finds that the Board erred by figuring in the hours of part-time employees when it computed Employer's average workweek.
CONCLUSION
The decision of the Board is reversed and remanded for further findings to ascertain whether part-time workers were used to calculate the Employer's average workweek. If it is found that part-time workers were included in the calculation, the Board is hereby directed to recalculate the average workweek of Employer using only the hours of full-time employees to arrive at the determination.
IT IS SO ORDERED.