"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.
Once Claimant found out that his assumption was incorrect, he attempted to show that he would have gotten a part-time job as a painting contractor or as an auto mechanic, however, that evidence was not conclusive to show that the second job was more than a mere speculation. Claimant feels that his loss of a potential second job should constitute a partial disability on the holding in Stanley Warner Corporation v. Slattery, Del.Super., 235 A.2d 633 (1967). However, in that case, the claimant presented a long history of working two jobs, a history which the present Claimant does not have.
Secondly, the purpose of the statute is to compensate the employee for his loss of earning capacity. Warner Corporation v. Slattery, Del.Super., 235 A.2d 633 (1967). In Maver v. Dwelling Managers Company, 34 N.J. 440, 170 A.2d 35 (1961) Chief Justice Weintraub discussed the apparent inequity and concluded that in light of the purpose of workman's compensation, the result of compensating part-time employees on a full-time basis is not unreasonable. He pointed out that the employer pays premiums only upon his actual payroll and as to the carrier that receives premiums on that limited basis, he is compensated by the fact that a part-time employee has less chance of being hurt because he is exposed less hours to the particular employment.
It is settled law of this jurisdiction that if the employer is able to establish that employment of one with the capabilities of the employee-claimant is within reach or readily available to her, then the Board cannot find a total disability. Stanley Warner Corporation v. Slattery, 235 A.2d 633 (Super.Ct. 1967); Ham v. Chrysler Corporation, supra. Thus, if a claimant is able to obtain employment commensurate with his training and qualifications, he would not be a totally disabled person.