Opinion
C.A. No. 99A-05-005-CHT.
Date Assigned: September 24, 1999.
Decided: January 5, 2000.
On Appeal from the Decision of the Industrial Accident Board AFFIRMED
Joseph J. Rhoades, Esquire, W Christopher Componovo, Esquire, 1225 King St., Suite 1200, P.O. Box 874, Wilmington, DE 19899, Attorneys for Claimant.
Sean A. Dolan, Esquire, Tybout, Redfearn Pell, 300 Delaware Avenue, #1100, P.O. Box 2092, Wilmington, DE 19899, Attorney for Employer.
OPINION AND ORDER
The matter before the Court concerns an appeal by Gary B. Rubick (Claimant) from a decision of the Industrial Accident Board on April, 22, 1999 to determine the applicable rate of compensation due following his work related injury.
FACTS
The basic facts are undisputed. The Claimant was injured at work on August 17, 1998 while working as an installer for his employer, the Security Instrument Corporation. At the time of his injury, the Claimant was assigned to a job for the State of Delaware which mandated that he be paid what the State determined to be the prevailing wage rate for that type of employment. That rate was $26.72 per hour. His normal wage rate when assigned to jobs which did not require that he be paid the prevailing wage rate was $13.33 per hour, although he had been paid a rate of $12.60 upon occasion. During the preceding six months, he had earned a total of $13,036.67, which represented a gross weekly wage of $501.41, based upon a forty-hour work week.
How long the Claimant had been so assigned is not clear. However, he had worked at that job earlier in the year for a period of months before it ended. His Employer was subsequently called back to do some additional work which resulted in the Claimant's reassignment and injury.
The Employer did not contest the existence or compensability of the injury, and tendered an agreement as to compensation based upon the average weekly wage as computed on the Claimant's earnings over the aforementioned six month period. The Claimant rejected that offer arguing instead that he was entitled to an average weekly wage based upon his hourly rate at the time of the injury, or $1,068.80 ($26.72 times 40 hours per week). Each side relied on 19 Del. C. Section 2306(b) in support of their respective positions. A hearing was requested before the Board to resolve the dispute.
Section 2306(b) reads:
(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.
That hearing was held on April 15, 1999. The sole issue before the Board was the rate of compensation to be applied. The Claimant argued that the first sentence of Section 2302(b) controlled the resolution of the issue. The Employer countered that the Claimant's construction would produce an unfair result unless the Board deemed this situation to be an exceptional case thereby falling within the ambit of the last sentence of that section. The Board greed with the Employer and ruled that the average weekly wage was to be based upon the Claimant's earnings over the six months preceding the injury, not his hourly rate on the date he was injured. The Board explained its ruling as follows:
While the Board can understand Claimant's desire to have the rate he was being paid under the prevailing wage statute used to determine his average weekly wage, this would not be a just result. The Board accepts Claimant's contention that his rate of wages is fixed by the hour and concludes that, absent exceptional causes, Claimant's weekly wage is that rate times the number of hours in an average work week of the employee's employer at the time of the injury . . . The Board does find that this is an exceptional cause case. The Board suspects that it was for just these types of cases that the final sentence of § 2302(b) was enacted. The purpose of the Workers' Compensation Law is not to provide a windfall. Its purpose is to fairly compensate an injured worker.
Bd. Op. at 2-3. Shortly thereafter, the Claimant filed this appeal.
DISCUSSION
On appeal from a decision of the Industrial Accident Board this Court's review is limited to determining whether there is substantial, competent evidence of record to support the Board's decision, and whether it is free from legal error. Stoltz Management Co. v. Consumer Affairs Bd., Del Supr., 616 A.2d 1205 (1992); and 29 Del. C. § 10142 (d). This 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 Board's factual findings. 29 Del. C. § 10142 (d). On questions of fact, deference is given to the experience and specialized competence of the Board. Id. The Court reviews the entire record to determine if based on the evidence, the Board could fairly and reasonably have reached the conclusion that it did. National Cash Register v. Riner, Del. Super., 424 A.2d 669, 674-75(1980).
The Board concluded that the use of the phrase "at the time of the injury" in § 2302(b), referred to the number of hours in an average work week of the employee's employer. Bd. Op. at 2. The Board found that this was an "exceptional cause" case, and therefore, they reviewed the Claimant's average work week over a six-month period to determine the award. Id. The Claimant asserts that the first sentence of the applicable statute is the only one that applies and that the Board erred in applying the "exceptional cause" language. Consequently, he argues that he is entitled to an award based upon a weekly wage rate of $1,068.80 which is in turn based upon an hourly rate of $26.72.
"Each part or section of pertinent statutes should be read in light of every other part or section to produce harmonious whole where General Assembly passed pertinent statutes as a whole and not in parts or sections." Oceanport Industries, Inc. v. Wilmington Stevedore. Inc., Del. Supr., 636 A.2d 892 (1994). The language of the statute states that, "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" unless exceptional causes exist. Therefore, the Board should calculate the wages at the rate of the employer's average employee unless one of the parties shows that exceptional causes exist and/or the Board makes an express finding that exceptional causes exist. See Harris v. Medical Center of Delaware, Super. Ct., C.A. No. 97A-09, Goldstein, J. (April 13, 1998) (Op. and Order) at 4.
As the Board pointed Out in its opinion, the Claimant's job assignment and rate of compensation varied with the particular assignment. On the date of the accident, the job on which he was working paid an hourly rate approximately two times that of the Claimant's normal hourly- rate. To base the compensation on that higher rate given the fact that its applicability and/or duration, was temporary as well as unknown, would be unfair to the Employer and would have resulted in a windfall to the Claimant. The statutory scheme was designed to provide fair and adequate compensation to employees injured during the course of their employment. See Howell v. Supermarkets General Corp., Del. Supr., 340 A.2d 833 (1975). Stated differently, under these circumstances, an exceptional cause exists which justifies varying from the method of calculating the wage rage due the Claimant set forth in thethe first sentence of § 2302 (b).
Given the lack of any dispute concerning the facts, it appears, and the Court so finds that there was substantial evidence in the record to support the factual determinations made by the Board. The Court further finds that the Board correctly interpreted and applied § 2302(b) to the instant facts. Its decision, as a result is free from legal error.
CONCLUSION
For the reasons stated above, the Court must conclude that there is substantial evidence to support the findings of the Board and that the Board did not err as a matter of law. The Industrial Accident Board's decision must therefore be affirmed.
IT IS SO ORDERED.