The Commission modified the arbitrator’s average weekly wage calculation by excluding “legal benefits,” where claimant’s paycheck stubs showed that this benefit was listed in earnings and was also listed as a deduction, along with tax and voluntary deductions. Therefore, claimant did not receive the legal benefits as pay.
Claimant, a diesel engine painter, testified that a metal flywheel cover weighing 10lbs fell onto his left ring finger. He was diagnosed with a burst-type lesion and crush injury of the distal phalanx left ring finger.
The arbitrator awarded benefits based on an average weekly wage of $977.84. The arbitrator calculated this by including straight time earnings, legal benefits, paid absence, shift premium, vacation/holiday pay and short work, week and divided this figure by 44 weeks, the period of time claimant actually worked out of the 52 week period preceding the accident.
The Commission modified the decision to find that claimant’s average weekly wage was $805.30. The Commission included straight time earnings, vacation/holiday pay and shift premium. The Commission noted that it had historically included shift premium in its calculations regardless if paid every week of the period used to computer average weekly wage. However, the Commission excluded “legal benefits” in the amount of $3.30 per pay period. The Commission noted that claimant’s paycheck stubs showed that this was listed in earnings and was also listed as a deduction, along with tax deductions and voluntary deductions. Therefore, claimant did not receive this as pay and it should not have been included in the average weekly wage calculation. The Commission also excluded the items of “paid absence” and “short work week,” for claimant failed to testify as to what these items were. Finally, the Commission found that the arbitrator should have divided claimant’s earnings by 52 weeks rather than 44 weeks, for both parties acknowledged that in the 52 week period preceding the accident, claimant worked 44 weeks and had 8 weeks of vacation.