Kingsbury v. Larry Brown Excavating (Nov. 25, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Kenneth Kingsbury File #: H-08364
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Larry Brown Excavating Commissioner
Opinion #: 69-96WC
Hearing held in Montpelier, Vermont, on October 3, 1996.
Record closed on October 18, 1996.
APPEARANCES
Althea Lloyd, Esq., for the claimant
James B. Grussing, Esq., for the employer
ISSUE
What is the correct calculation of the claimant's average weekly wage?
THE CLAIM
1. All benefits under the Workers' Compensation Act based on an hourly rate
of either $10.00 or $11.66.
EXHIBITS
1. Joint Exhibit 1 Rent ledger
2. Joint Exhibit 2 Claimant's payroll ledger
3. Joint Exhibit 3 W-2 for claimant
4. Joint Exhibit 4 Dennis Palmer's payroll record
5. For I.D. "a" Claimant's answers to interrogatories
FINDINGS OF FACTS
1. The above exhibits are admitted into evidence, with the exception of For I.D. "a". Notice is taken of all forms filed with the Department of Labor and Industry.
2. The claimant had worked for the employer in the 1980s, originally as a seasonal worker at $4.50 an hour, and then full time at $7.00 an hour. He then left the employment with the defendant and went to California, and later Las Vegas for a number of years. He returned to Vermont in early 1994.
3. He rented a trailer from Steve Brown, Larry Brown's son, at the rate of $400.00 a month. At some time in the summer the claimant began to fall behind in his rent. He asked Larry Brown if there was any work for him to do in order to start catching up on his rent. After initially denying that
there was, Mr. Brown decided that he did have work for the claimant in the form of working on a wood pile that was on the site of the trailer. This was wood that Mr. Brown intended to sell as fire wood.
4. The claimant avers that Mr. Brown told him he could earn $700.00 a week cutting wood, and that he could work between 30 and 60 hours a week. The claimant had physical restrictions to his ability to work, caused by gout in his foot. Mr. Brown was aware of these restrictions.
5. Mr. Brown denied making any such representation to the claimant about the amount that he could earn. He testified that there was no discussion with regard to wages but that he intended to pay the claimant $7.00 an hour, which had been his last wage when working for Mr. Brown.
6. The claimant worked from October 3, 1994, to October 14, 1994, on the wood pile at the trailer. Thereafter, he was told by Mr. Brown to report to work at the main office, as there was other wood to be split at another location. When the claimant began to work on the second wood lot, he was
punching the time clock.
7. At some time during the week following October 14, the claimant told Mr. Brown that he had worked 60 hours on the wood pile at the trailer. The claimant was credited $420.00 towards his rent for these two weeks of work, a fact that the claimant did not learn until December of 1994 or January of 1995.
8. The claimant worked at the second wood lot during the week of October 17. During that week, his time card indicated that he worked 20 hours, although many more hours were available to him for work.
9. On Saturday, October 22, the claimant suffered a serious injury when a chain saw slipped and cut his left wrist. The claimant was rushed to the hospital.
10. The claimant's wife was given some cash by Mr. Brown to help her buy gas to visit her husband in the hospital. At some point, Mr. Brown even loaned Mrs. Kingsbury a truck when her own vehicle was not operable. He later gave her cash payments that, with the earlier cash, equaled $280.00, based on his assumption that he should pay the claimant for a full week's work at $7.00 an hour.
11. Mr. Brown considered the claimant to be a general laborer. He had only one other general laborer on his payroll, one Dennis Palmer. Mr. Palmer was paid at the rate of $10.00 an hour. Mr. Brown indicated that the reason for the discrepancy between the compensation rate for Mr. Palmer and that for the claimant was because Mr. Palmer had been steadily employed by the defendant for a period of six years, during which he learned the business and needed a minimum of supervision. Moreover, Mr. Palmer had as daily tasks jobs that the claimant was not qualified to do. Mr. Brown testified that Mr. Palmer's rate of pay reflected his years of service and that he was a more valuable employee. In addition, Mr. Palmer's tasks included a number of jobs that Mr. Brown was not prepared to have the claimant do in his limited work for the company. Mr. Brown did not anticipate having the claimant on the payroll past the time of preparing the wood for sale.
12. Mr. Brown testified that he rarely had employees working more than 40 hours a week as he was loath to pay overtime, and that he certainly did not expect the claimant to work more than 40 hours a week. He testified that the only reason the claimant was working on a Saturday was to try to make up some of the time he had missed during the week because of his problems with his gout.
13. All of the claimant's compensation benefits to date have been paid based on an average weekly wage of $280.00.
14. The claimant has presented evidence of his fee agreement with his attorney in this matter for a contingency fee of 25%. Subject to the restrictions of Rule 10(a), this agreement is acceptable. The claimant has also produced evidence of costs in the amount of $79.16, which are reasonable.
CONCLUSIONS
1. In workers' compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v.Fairbanks, Morse Co., 123 Vt. 161 (1963).
2. The claimant alleges that he is entitled to a computation of his average weekly wage based upon the wage of a comparable employee or alternatively on the claimant's rate of hire. These claims are based on a reading of Rule 15(e) of the Workers' Compensation and Occupational Disease Rules, which states: "if the claimant has been employed for fewer than 4 weeks at the time of his or her injury, such that by reason of the shortness of the time during which he/she has been in the employment it is impracticable to compute his or her average weekly wage..., then the gross wages of a comparable employee working in a similar capacity under like conditions for the twelve weeks prior to the injury shall be used instead. If wages of a comparable employee are not available, the claimant's agreement with the employer as to both expected hours per week and rate of pay shall be used to determine the average weekly wage."
3. I do not find that Mr. Palmer is a comparable employee for purposes of the calculation of the claimant's average weekly wage. In particular, I find that Mr. Palmer was a full time regular employee of the defendant, while Mr. Kingsbury's employment was seasonal at best. Nothing in the statute or the rules requires an employer to pay casual or seasonal labor at the same rate as experienced employees with additional duties.
4. Because there is no comparable employee, the correct measure for the claimant's average weekly wage is his rate of hire with the employer. It is disingenuous of the claimant to assert that he is entitled to a compensation rate based upon 60 hours of work a week, given that in the three weeks worked by the claimant, he never managed to work more than 30 hours in a week. The evidence supports the proposition that both parties knew at the time of the hiring that the claimant's physical condition precluded him from working a regular work week, and that Mr. Brown was prepared to accommodate the claimant's difficulties.
5. In addition, it is unlikely that the employer would offer the claimant the position at $700.00 a week when his other more valued general laborer was not earning more than $400.00 a week. The employer has been generous in assuming that the claimant was entitled to an average weekly wage based on 40 hours of work at any rate of pay. I find that the claimant's average weekly wage for purposes of this claim was $280.00, reflecting 40 hours of work at $7.00 an hour.
6. The claimant not having prevailed is not entitled to an award of attorney's fees or costs.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that the claimant's claim for additional benefits based on a higher average weekly wage be and hereby is DENIED.
DATED at Montpelier, Vermont, this 25th day of November 1996.
_____________________________
Mary S. Hooper
Commissioner