Mid-Sussex Rescue Squad v. Hearne

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MID-SUSSEX RESCUE SQUAD, ) C.A. No.: S23A-06-002 RHR
)
Employer-Below/ )
Appellant. ) CITATION ON APPEAL
) FROM THE DECISION OF
) THE INDUSTRIAL
v. ) ACCIDENT BOARD OF THE
) STATE OF DELAWARE
DAVID HEARNE, )
)
Claimant-Below/ ) HEARING NO.:1532083
Appellee. )
)
)
MEMORANDUM OPINION AND ORDER
Submitted: November 16, 2023
Decided: February 15, 2024
Upon Consideration of an Appeal of the Decision of the Industrial Accident Board,
AFFIRMED.
Kimberly A. Harrison, Esquire, Tybout, Redfearn & Pell, 501 Carr Road, Suite
300, Wilmington, Delaware 19809.
Ross C. Karsnitz, Esquire, Morris James, LLP, 107 West Market Street, P.O Box
690, Georgetown, Delaware 19947.
ROBINSON, J.
Before the court is an appeal challenging the average weekly wage calculation
performed by the Industrial Accident Board (“IAB”). The only issue in dispute is
whether the IAB correctly excluded sick and vacation time from the average weekly
wage and used a reduced divisor to reflect the exclusion. For the following reasons,
the IAB’s decision is AFFIRMED.
BACKGROUND
David Hearne (“Claimant”) was a paramedic employed by Mid-Sussex
Rescue Squad (“Employer”). The job responsibilities of a paramedic do not allow
for a 9:00 to 5:00, Monday through Friday schedule. Claimant often worked 24-hour
shifts twice a week. In addition to sick and vacation leave, he received other benefits
that reflected the erratic schedules paramedics have. For example, for holidays he
would be paid even if he did not work, and time-and-a-half when he did. On
December 18, 2022, while on a medical call, Claimant suffered work-related injuries
to his cervical spine, thoracic spine, and lumbar spine. The IAB conducted a hearing
on May 31, 2023, and awarded Claimant average weekly compensation of $595.07.
Employer filed a Notice of Appeal on June 20, 2023, challenging the method by
which the IAB calculated Claimant’s average weekly wage (“AWW”).
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STANDARD OF REVIEW
This court has jurisdiction over appeals from administrative agencies
including the IAB under 29 Del. C. § 10142(a). “The review of an Industrial
Accident Board’s decision is limited to an examination of the record for errors of
law and a determination of whether substantial evidence exists to support the
Board’s findings of fact and conclusions of law.”1 Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”2 “On appeal, this Court will not weigh the evidence, determine
questions of credibility, or make its own factual findings.”3 Our courts give great
deference to those decisions made by administrative agencies, “[o]nly when there is
no satisfactory proof to support a factual finding of the Board may the Superior Court
or [the Supreme Court] overturn that finding.”4
DISCUSSION
When an employee is injured during the course and scope of his employment,
he is entitled to be financially compensated in the form of a reduced AWW. 5 This
1
Washington v. Delaware Transit Corp., 226 A.3d 202, 210 (Del. 2020).
2
Id. (“Substantial evidence is “more than a scintilla but less than a preponderance…”).
3
Id.4
Noel-Liszkiewicz v. La-z-Boy, 68 A.3d 188, 191 (Del. 2013).
5
19 Del. C. § 2324 (“For injuries resulting in total disability occurring after July 1, 1975, the
compensation to be paid during the continuance of total disability shall be 66 2/3 % of the wages
of the injured employee . . .”).
3
wage is calculated by the IAB following the guidelines found in 19 Del. C. § 2302
(“Section 2302”). The applicable sections read as follows:
(a) “Average weekly wage” means the weekly wage earned by the
employee at the time of the employee’s injury at the job in which the
employee was injured, including overtime pay, gratuities and regularly
paid bonuses (other than an employer’s gratuity or holiday bonuses) but
excluding all fringe or other in-kind employment benefits. The term
“average weekly wage” shall include the reasonable value of board,
rent, housing or lodging received from the employer, which shall be
fixed and determined from the facts in each particular case.
(b) The average weekly wage shall be determined by computing the
total wages paid to the employee during the 26 weeks immediately
preceding the date of injury and dividing by 26, provided that:
(1) If the employee worked less than 26 weeks, but at least 13
weeks, in the employment in which the employee was injured, the
average weekly wage shall be based upon the total wage earned by the
employee in the employment in which the employee was injured,
divided by the total number of weeks actually worked in that
employment;
The intent of the General Assembly in passing 19 Del. C. § 2302 was to compensate
injured employees for their lost earning capacity, rather than their lost income.6 For
this reason, when a claimant does not work all 26 weeks prior to an injury, the divisor
can be reduced to reflect actual weeks worked.7 The General Assembly also chose
to exclude benefits from the calculation.8
6
Taylor v. Diamond State Port Corp., 14 A.3d 536, 537 (Del. 2011).
7
Id. at 540.
8
Crouse v. Hy-Point Dairy Farms, Inc., 2015 WL 4485559, at *6 (Del. Super. Ct. July 22, 2015).
4
In this case, the IAB granted Claimant an AWW payment of $595.07,
calculated as follows:
Claimant worked for twenty-six (26) weeks prior to his injury. He was
totally out of work (and thus NOT performing actual work) for a total
of 3.6 weeks (24 hours sick leave + 12 hours holiday not worked + 108
hours vacation = 144 hours or 3.6 weeks). His proper gross amount of
wages is $19,984.61, as the vacation, sick, and unworked holiday leave
paid should not be added to his gross wages because it would artificially
inflate his wages for those weeks.9
The IAB reduced the 26-week period by 3.6 weeks, which created the 22.4-week
divisor.
Employer claims the IAB erred when it calculated Claimant’s AWW by using
22.4 as a divisor instead of 26. Employer argues that 26 is the correct divisor because
Claimant worked all 26 weeks prior to his injury. Here, Claimant worked fewer
hours and took vacation time during the weeks preceding the injury but was never
out an entire week.
Claimant acknowledges that holiday, sick, and vacation time should be
excluded from wages for purposes of the AWW calculation, but only when the
divisor is also reduced to account for the exclusion of those benefits. Claimant argues
that the IAB properly relied on the Delaware Supreme Court’s reasoning in Taylor
v. Diamond State Port Corp.10 in finding that the proper divisor was 22.4 weeks, not
9
D. I. 10, tab 14, p. 14-15.
10
14 A.3d 536 (Del. 2011).
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26 weeks. Claimant also invites this court to overrule prior cases that held that
vacation, holiday, and sick pay are fringe benefits under 19 Del. C. § 2302 (“Section
2302”). He argues that not only would such an interpretation harmonize Section
2302 and legislative intent, but it would also allow adjusters and injured workers to
calculate payments more easily.
The parties raised these arguments to the IAB. The IAB in this case interpreted
Section 2302 and Taylor to base the AWW on the time that the injured worker
“actually worked.”11 Because Claimant used vacation, holiday, and sick leave time
totaling 3.6 weeks over the 26-week period, the IAB determined that Claimant
“actually worked” 22.4 weeks (26 weeks minus 3.6 weeks), making 22.4 the
appropriate divisor.
The disagreement between the parties arises because Section 2302 does not—
and probably cannot—provide clear guidance on calculating AWW for all possible
employment scenarios. Modern employment arrangements are often complex, and
the language of Section 2302 must be interpreted flexibly. The AWW for a salaried
worker or an hourly worker who works full-time for 26 weeks prior to an injury is
easily calculated. Those calculations, however, get much more complicated in
atypical employment arrangements such as Claimant’s. The IAB must be given great
11
Taylor, at 542 (“’worked’ in subsection (b)(1) means the time that the employee ‘performed
work’ or ‘actually worked.’”).
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deference to interpret Section 2302 and relevant case law considering each
employee’s unique compensation arrangement. “In general, the construction given
to a statute by the state agency charged with the statute’s enforcement is accorded
great judicial deference, so long as the construction is reasonable and does not
contradict the plain language of the statute.”12
In the present case, the IAB thoughtfully considered the Supreme Court’s
decision in Taylor and reasonably concluded that the phrase “actually worked” in
Section 2302 means work “actually performed.”13 When Claimant took time off and
made himself unavailable for work—whether it was sick, holiday, or vacation
time—that time should not be included in calculating the AWW. The IAB’s
interpretation of Section 2302 and Taylor also results in a more consistent result for
workers. For example, if a worker happened to take vacation or sick time in the
weeks prior to an injury, he would see a reduction in benefits if the IAB did not
account for that time in calculating the AWW. In addition, only looking at whether
an employee worked even a partial week of the 26-week period would seem to
benefit salaried workers over hourly workers because the salaried worker takes home
the same pay whether that worker actually worked all of those days for which he is
paid.
12
Wilson v. Gingerich Concrete & Masonry, 285 A.2d 445, at 455 (Del. 2022) (internal citations
omitted).
13
D. I. 10, tab 14, p. 14.
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CONCLUSION
The IAB correctly interpreted Section 2302 and Taylor when it subtracted
holiday, sick, and vacation pay from the total amount earned during the 26-week
period and also reduced the divisor to reflect the work actually performed. With the
deference due to the IAB to interpret Section 2302, there is no need for this court to
endorse Claimant’s alternative method of calculating AWW.
The decision of the IAB is AFFIRMED.
IT IS SO ORDERED.
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