Opinion
C.A. No. 06A-04-008 MMJ.
Submitted: August 23, 2007.
Decided: December 4, 2007.
UPON APPEAL FROM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD AFFIRMED.
R. Stokes Nolte, Esquire, Nolte and Associates, Wilmington, Delaware, Attorney for Employee-Appellant.
Linda L. Wilson, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware, Attorney for Employer-Appellee.
MEMORANDUM OPINION
Kieran Sniadowski ("Employee") has appealed a portion of the Industrial Accident Board ("IAB")'s December 29, 2005 decision. Employee claims that the IAB improperly calculated Employee's average weekly wage at the time of injury. Average weekly wage is the amount earned by the employee at the time of work related injury, including overtime pay, gratuities and regularly paid bonuses (other than an employer's gratuity or holiday bonuses).
The IAB calculated employee's average weekly wage by using Employee's last bi-weekly pay stub prior to the date injury of March 9, 2002. Employee claims that the IAB's calculation of Employee's average weekly wage was flawed because the IAB failed to take into consideration Employee's W-2. Employee contends the IAB's failure to consider Employee's W-2 renders the IAB's calculation of Employee's average weekly wage defective as a matter of fact and law.
Pulte Homes ("Employer") asserts that the record contains sufficient evidence to support the IAB's finding that Employee was an hourly employee, and not an output employee. Pulte Homes further asserts that the exclusion of the W-2 from the determination of average weekly wage was proper. Therefore, the IAB's finding that Employee's average weekly wage was $761.51 is supported by substantial evidence and is free from factual and legal error.
FACTUAL AND PROCEDURAL CONTEXT
Employee suffered a work-related injury on March 9, 2002 while employed by Employer. As a result of this accident, Employee began receiving workers' compensation benefits pursuant to an agreement between Employer and Employee ("Agreement"). The parties agreed that the average weekly wage at the time of the injury was $703.65.Employee filed a Rule to Show Cause with the IAB seeking reformation of the Agreement. The IAB held a hearing on November 10, 2005; the IAB released its decision on December 29, 2005. The IAB held that the Agreement was based on a mutual mistake of fact regarding the average weekly wage, and granted Employee's motion. Employee proffered his second to last pay stub and his W-2 for 2002 earnings. Based on the pay stub alone, the IAB reformed the Agreement and determined that the average weekly wage at the time of the injury was $761.51.
The pay stub was dated March 8, 2002.
The W-2 showed Employee's earnings from January 2002 to March 9, 2002. The total wages were $14,949.61. The date of the work-injury was Employee's last day of work for Employer.
On January 9, 2006, Employee filed a Motion for Reargument, on the basis that the IAB incorrectly calculated Employee's average weekly wage at the time of injury. Employee further asserted that the IAB erred by failing to award Employee attorney fees. On February 23, 2006, the IAB awarded attorney fees to Employee, but affirmed the finding that $761.51 was the proper amount of Employee's average weekly wage.
On April 12, 2006, Employee filed an appeal of the IAB's February 23, 2006 order with this Court. The appeal is limited to the issue of the IAB's determination of Employee's average weekly wage. Employee asserts that the IAB's finding for average weekly wage was flawed because the IAB relied only on the pay stub. Thus, exclusion of Employee's W-2 from the calculation was both an error of law and fact.
Some of the findings of the IAB's February 23, 2006 decision denying Employee's challenge to the IAB's determination of average weekly wage are as follows:
• The IAB determined that Employee was an hourly employee based on a New Hire Form, Employee's pay stub, and Employee's own testimony. The New Hire Form regarding Employee's employment contained this relevant information: $31,200 annual salary, scheduled 40 hour work weeks, the employee was non-exempt from overtime, and that the labeled area for bonuses was blank.
• The IAB declined to accept Employee's assertion that the bonus listed on his W-2 was quarterly. The IAB noted that there was no testimony regarding the dates of Employer's quarterly cycle or any testimony provided as to the date of the bonus payment. There was no evidence on record to support Employee's contention that such a bonus was expected every quarter. The 2002 W-2 could not provide such data because Employee worked for less than 6 months in 2002.
• The IAB declined to accept Employee's assertion that his bonus was based on output as opposed to a discretionary gratuity paid by Employer. Employee's base pay amount was tied to 40 scheduled hours, and any time that Employee worked over and above 40 hours, he was paid overtime at time and a half, based on an hourly rate.
• The IAB determined that Employee was an hourly employee and that the use of the pay-stub alone was proper for the determination of Employee's average weekly wage. The IAB noted that Employee proferred no evidence regarding the average work week of Employee's Employer. The IAB found no rationale to include the bonus listed on the W-2, and declined to adopt a formula to include such amount.
STANDARD OF REVIEW
On appeal from the IAB, the role of the Superior Court is to determine whether there was substantial competent evidence to support the finding of the IAB. The Superior Court is not the trier of fact and does not have the authority to weigh the evidence, make determinations of credibility, or make its own factual findings. The Superior Court determines if there is substantial competent evidence, i.e., legally sufficient evidence, to support the findings and conclusions of the IAB on the record. If the record lacks substantial competent evidence supporting the finding or decision of the IAB, the Superior Court must overturn the decision of the board. On appeal, the Superior Court reviews de novo an issue on the proper application of the law.When faced with conflicting testimony, the IAB weighs the evidence and determines credibility. If the finding or decision of the IAB is supported by substantial competent evidence, the Superior Court must affirm the decision of the IAB. On appeal, the Superior Court does not sit as a trier of fact, and must afford deference to the decisions and expertise of the IAB.
Johnson, 213 A.2d at 66.
ANALYSIS
Employee asserts that this Court should reverse the decision of IAB as to the calculation of Employee's average weekly wage. Employee contends that the failure to give Employee credit for earnings that appear on his W-2 is error as a matter of law and fact. Employee contends that his bonuses were based on output or production.Employer argues that the IAB correctly determined that Employee was an hourly worker and not an output based employee. Employer asserts that for an hourly employee, it is improper to use the W-2 for the calculation of average weekly wage and that it is improper to include Employee's one-time bonus in the average weekly wage.
The IAB determined that Employee was an hourly worker. An hourly employee must be compensated on the basis of the hourly rate at the time of the accident, even if that rate is significantly above or below the employee's average hourly rate. The calculation of average weekly wage for an hourly employee is the hourly rate times the number of hours in the employer's average work week. For output employees, the average weekly wage is the employee's average weekly earnings for the preceding six months.
Rubick v. Security Instruments Corp., 766 A.2d 15, 17 (Del. 2000).
Rubick, 766 A.2d at 15.
The IAB declined to accept Employee's assertion that the bonus was based on Employee's output. A discretionary gratuity is not part of Employee's wages as defined in 19 Del C. § 2302(a). The following factors may be considered determining whether a bonus is a tip or gratuity: (1) whether the bonus amount was specified in worker's employment contract; (2) whether the bonus was for extraordinary services; (3) whether the worker's wages were so low as to require a conclusion that the bonus must be wages; and (4) whether the bonus regularly constituted a portion of compensation on a regular basis.
See Frankel v. Au Clair School, 1989 Del. Super. LEXIS 362, at *4-5.
Employee testified that he "could" receive bonuses, not that he would always receive them. The IAB specifically noted that there was no testimony as to the dates of Employer's quarterly cycle, nor was there any testimony as to the date of the payment of the single bonus that was received by Employee. Employee testified that he had received only one bonus, and failed to provide any specific evidence as to the criteria upon which the bonus was based, or the timing or dates of the bonus payment. Although Employer conceded that performance may have been one factor in the payment of a bonus, the record lacked any further information as to the criteria upon which the bonus was based.
The Court finds that the use of the pay stub alone was proper for calculating average weekly wage of Employee.
CONCLUSION
Employee had the burden of establishing that the IAB erred as a matter of law and fact in its calculation of Employee's average weekly wage. Employee was unable to meet this burden. This Court will not substitute its judgment for that of an administrative body where there is substantial evidence to support the decision and subordinate findings of the agency. The IAB properly calculated Employee's average weekly wage by the exclusive use of the pay stub. The IAB weighed the relevant evidence and determined that Employee's one-time bonus was insufficient to demonstrate entitlement to regular bonuses on the basis of worker output. This Court finds the IAB's decision free from legal error and supported by substantial evidence in the record. Accordingly, this Court must defer to the specialized competence and experience of the IAB.THEREFORE, the decision of the Industrial Accident Board is hereby AFFIRMED
IT IS SO ORDERED.