1
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BESSEMER DIVISION
GREGORY PILKERTON Plaintiff,
VS. CIVIL ACTION NO.: CV 10-276
COOL TEMP, INC., a corporation or other business entity and A,B,C, and D, corporations, individuals, and/or entities who are otherwise unknown to Plaintiff but shall be added by amendment when ascertained, each of which are liable to Plaintiff for workers’ compensation benefits,
Defendants.
SUPPLEMENTAL BRIEF ON THE ISSUE OF AVERAGE WEEKLY WAGE
COMES NOW the Plaintiff, by and through undersigned counsel, and submits the following supplemental brief on the issue of average weekly wage. In support thereof, Plaintiff states as follows:
I. BACKGROUND
At the time of the subject accident, the workers compensation carrier contacted the Defendant to obtain appropriate wage information. Because of the shortness of
Plaintiff’s employment, the primary method of calculating one’s average weekly wage (AWW) as described below, was inapplicable. As a result, the carrier utilized the appropriate alternative method by having the Defendant identify and provide the wages of a “similarly situated employee” with a longer employment term.
Based on the wages of the similarly situated employee, the carrier concluded the appropriate AWW was $1,282.01. Although the compensation rate for benefits is
calculated based on 2/3 of this AWW as $854.72, the amount was subject to the ceiling of $682.00 as established in the Act for the period of time. This is the rate upon which the carrier based Plaintiff’s benefits and it is the proper calculation. Several years later (just
2
a couple months ago when both counsel began discussing issues in order to prepare for trial), defense counsel contended he would argue for a lower and, in this case, factually and legally inappropriate AWW number. As a result of this AWW issue, Plaintiff submits this supplemental brief.
II. THE CALCULATION OF AVERAGE WEEKLY WAGE UNDER ALABAMA’S ACT
The recent case of G.A. West & Company v. McGhee, 58 So. 3d 167 (Ala.Civ.App. 2010) attached hereto as Exhibit “A,” again addressed the appropriate methods to calculate average weekly wage in a workers’ compensation case. As the case notes, the Act provides a required method of calculation where factually applicable. The alternative methods only became applicable under specific circumstances. Thus, the undersigned will begin with the method required in a normal case and proceed through the various alternatives.
A. THE AWW SHOULD BE BASED ON AN AVERAGE OF THE EMPLOYEE’S WAGES FOR THE 52 WEEKS PRECEDING THE INJURY
The methods established for calculating an employee’s AWW are set forth in Ala. Code § 25-5-57 (b). That section established the required method (where factually available) as follows:
Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25–5–1(6)
[, Ala.Code 1975,] of the injured employee in the employment in which he or she was
working at the time of the injury during the
period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted.
Is this method available in the case at bar? No, it is not available. In the present case, Greg Pilkerton began his employment and worked 6 days only, before his
3
debilitating accident where the attic support underneath him collapsed.1
B. THE AWW SHOULD BE BASED ON ACTUAL WEEKS AND PARTS THEREOF WORKED IF LESS THAN 52 WEEKS AS LONG AS THE RESULTS ARE FAIR
Often, an employee will not have 52 weeks of wages preceding the accident. When this occurs, the Act provides a second method to calculate AWW. Here is what the Act says when employment has not lasted 52 weeks.
Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts
thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained.
What are the facts in this case? Greg Pilkerton was hired at $16.50 an hour (overtime would have been at 1.5x wages or $24.75). His first day to work was Wednesday, October 17, 2007. Here is the breakdown of Mr. Pilkerton’s days and hours of work for the 6 days he worked leading up to his injury:
Day Date Hours Worked
1. Wednesday, October 17, 2007 9
2. Thursday, October 18, 2007 12.5
3. Friday, October 19, 2007 12
4. Monday, October 22, 2007 8.5
5. Tuesday, October 23, 2007 10.5
6. Wednesday, October 24, 2007 13
1
In the case at bar, the Defendant sent him on a service call while he was working overtime to a unit that the Defendant had installed previously without adequate safety support.
4
(See, Timesheets Attached as Exhibit B). In the case at bar, the defense counsel now contends Plaintiff actually worked 2 full weeks. As such, Defense counsel has divided 6 days of actual, paid work over the course of 10 days, to arrive at an artificially low AWW.
However, this is clearly contrary to the Act. The Act, in describing this method, expressly states that one should use not simply whole weeks, but instead, the “parts thereof during which the employee earned wages.”
In the case at bar, the Plaintiff earned gross wages of $1,072.50 (552.75 + 519.75) for 6 days of work.2 Based on 6 days of real work (and not 2 full weeks or 10 business days), Mr. Pilkerton’s AWW would be approximately $893.75. ($1,072.75 gross divided by 6 days = $178.75 a day. Then, multiply this amount by 5 for a full work week).
Under our Act, calculating the parts of weeks actually worked is the appropriate method if the results are fair. However, the undersigned does not believe this method provides a fair result and will attempt to explain why.
If one looks at Plaintiff’s actual time sheets, it is readily apparent that Plaintiff worked far more than the normal 8 hours a day. Indeed, he worked over 8 hours every one of the 6 days. On 3 of the 6 days, he actually worked 12+ hours. In fact, the day his work ended on October 24, 2007 with the devastating injury, it was after 13 hours of work.
Quite clearly, Plaintiff was working significantly over 8 hours each and every day. On a normal week, his hours would have far exceeded 40, giving him substantial pay not as his rate of $16.50/hour but the overtime rate of 1.5x normal (or 24.75/hour). In the interest of fairness this must be considered. His substantial daily hours in excess of an 8 hour shift, would not have been reflected at 1.5x in his two pay stubs for the very simple reason that these pay periods gave the Defendant an artificial credit for the days prior to Plaintiff’s employment and days following his injury upon which to offset the overage and keep the weekly total below 40 hours. This would not have been the case in the absence of his injury.
If one looks solely at Plaintiff’s timesheets, he averaged 10.92 hours a day (65.5 hours total divided by 6 days) prior to his injury. Over a normal 5 day work week, this
2
Of note, Plaintiff actually logged 32 hours in the 3 days preceding his injury (see time sheet) but was only paid for 31.50 hours. So, the Defendant did not pay him his full earnings.
5
would equal 54.6 hours.3 His average wage would have been $1021.35 (40 hours x $16.50/hr. = $660.00 plus 14.6 hours x 24.75/hr. = $361.35 for a total of $1021.35 per week). Of course, this calculation does not consider Plaintiff’s commissions for selling units or the increase in hours over time as he gained customers. In such situations, the Act employs a third method.
C. THE AWW SHOULD BE BASED ON A SIMILARLY SITUATED EMPLOYEE WHERE THE SHORTNESS OF PLAINTIFF’S EMPLOYMENT MAKES OTHER METHODS
IMPRACTICABLE
In situations where the injured worker has only a very limited employment with the Defendant, our Act provides a third method of calculating AWW. The following is that method:
Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district.
In the case at bar, this is the method the workers’ compensation carrier utilized. By utilizing this appropriate method, the Defendant arrived at an AWW of $1,282.01. This would provide a compensation rate of $854.72, subject to the ceiling of $682.00 (see Exhibit C). This was the method accepted by everyone until just a few weeks ago when defense counsel decided to argue the artificial methods of dividing Plaintiff’s 6 days of work by 10 days (or 2 full weeks), allowing the Defendant to benefit by including days prior to Plaintiff’s employment and after his injury, to reduce AWW.
At the time of the injury, the Defendant itself concluded that Jason Smith was a similarly situated employee and produced his wages as appropriate. According to the time records now produced by Defendant, both men earned $16.50/hour. Both men worked significant overtime. According to the Plaintiff, Jason Smith (the person listed by Defendant as the similar employee) actually helped Plaintiff get this job. Both men
3
This assumes Plaintiff’s hours would not increase over time. However, as Plaintiff gained regular customers, his hours would have likely increased.
6
understood they would be co-workers doing the same work. Thus, this is the appropriate method of calculating AWW.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that this Honorable Court find Plaintiff’s AWW as discussed in the preceding and that his compensation rate is subject to the appropriate ceiling.
Respectfully Submitted,
Jeffrey G. Blackwell
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served upon counsel of record on this the _______ day of November, 2011, by hand delivery in open court: William A. Austill, Esq.
Austill, Lewis & Pipkin, PC P.O. Box 11927
Birmingham, Alabama 35202-1927
_________________________________ OF COUNSEL
