Runnals v. Can Do Special Events (Oct. 5, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Ruby Runnals File #: H-22867
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Can Do Special Events Commissioner
Opinion #: 56-96WC
Hearing held at Montpelier, Vermont, on July 26, 1996
Record closed on August 19, 1996
APPEARANCES
Joseph Paul O'Hara, Esq., for the claimant
Christopher McVeigh, Esq. for the defendant
ISSUE
What is the correct measure of the claimant's average weekly wage?
THE CLAIM
1. An average weekly wage based on 39.4 hours a week at $7.00 an hour.
STIPULATIONS
1. At all relevant times, the claimant was an employee within the meaning of the Workers' Compensation Act.
2. At all relevant times, the defendant was an employer within the meaning of the Workers' Compensation Act.
3. On September 1, 1994, the claimant suffered a compensable injury while in the employ of the defendant.
4. The claimant has received reasonable and necessary medical care for her injury.
5. The claimant is entitled to an award of twelve weeks of temporary total disability benefits, and permanency benefits consistent with a 23% permanent partial impairment to her upper extremity.
EXHIBITS
1. Claimant's Exhibit 1: Can Do Special Events 1994 Payroll Review
2. Claimant's Exhibit 2: Memo from Pat Pettinato to Chris McVeigh
3. Claimant's Exhibit 3: Can Do Special Events payroll ledger
4. Claimant's Exhibit 4: 1994 W-2 forms for Can Do Special Events employees
5. Claimant's Exhibit 5 Deposition of Lawrence Copp
FINDINGS OF FACT
1. The above stipulations are accepted as true, and the exhibits are admitted into evidence. Notice is taken of all forms filed with the Department in this matter.
2. Can Do Special Events is in the business of supplying party equipment, including tents, tables, chairs and staging, on a rental basis for social functions. The work is seasonal, and the employees of the company are frequently college students. On September 1, 1994, Can Do hired the claimant to work one day as a facilitator and laborer in the setting up of a tent. Can Do's position at the hearing was presented by Pat Pettinato, the president of the company.
3. According to Ms. Pettinato, the claimant was offered the work in an effort to allow her to spend more time with her husband, who was also an employee of the company. Her role that day was to be a liaison between the client and the laborers to ensure that the work was done properly. It was also to be her responsibility to collect any balance due from the client. She was also responsible for making sure that all of the necessary equipment was loaded on the trucks to take to the client's site. The job was expected to last for approximately six hours.
4. The claimant had never worked in this capacity before for the company. When she arrived on the morning of September 1, she spoke with John Pettinato, the husband of Ms. Pettinato, who gave her instructions to get a notebook out of one of the vehicles and to start checking that the appropriate equipment was being loaded. As the claimant was stepping down from the truck, she fell on her left wrist, breaking it. The claimant had been at work for less than 10 minutes.
5. The parties agree that the claimant was meant to be paid at the rate of $7.00 an hour. There is no evidence that the claimant was expected to work for more than the one day in question, and the parties' respective testimony seems to support the position that the claimant was hired for just one day's work. Although there was much testimony about what other employees of the defendant had for weekly wages, and about hourly rates for "intermittent, seasonal unskilled work" in the central Vermont area, none of the testimony addressed the issue of the average weekly wage for a casual employee who, like the claimant, was expected to work a very short period of time.
6. The claimant had previously performed tasks for the Pettinatos, including driving chairs to a Lippizan stallion event being supplied by a competitor who was short of chairs. The claimant had also on one prior occasion driven a replacement truck to a site in New Hampshire where another truck had broken down. On each of those occasions, she was paid in cash for her work. In the case of the Lippizan show, she was paid $45.00 for four and a half hours of work. In both of those incidents, the claimant was performing work for the employer. The claimant had also once provided transportation for Ms. Pettinato's mother, which was not work for the employer.
7. The claimant produced evidence from Lawrence Copp, an economist, on the issue of the average weekly wage for other employees of the defendant. He excluded from his calculations the wages of two supervisory personnel and one other employee in whose ledger entries there appeared to be a substantial error. Based on his analysis, he determined that the adjusted median weekly earnings for the employees was $232.34, with an average hourly rate of $7.15, or slightly in excess of the amount agreed upon by the parties. Further, upon review of material from the Vermont Department of Employment and Training, he ascertained that the average hourly wage for intermittent, seasonal workers in central Vermont was $7.03.
8. The claimant has not presented evidence of he fee agreement with her attorney, as required by Rule 10(g) of Workers' Compensation and Occupational Disease Rules, although she has presented an itemized statement of the hours expended by her attorney, 76.7 hours, and costs in the amount of $872.04.
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). The claimant must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. The sole issue in this case is the appropriate construction of 21 V.S.A. §650(a), which states in pertinent part, "Average weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve weeks preceding his injury; but where, by reason of the shortness of the time during which the worker has been in the employment,...it is impractible to compute the rate of remuneration, average weekly wages of the injured worker may be based on the average weekly earnings during the twelve weeks previous to the injury earned by a person in the same grade employed at the same or similar work by the Employer of the injured worker, or if there is no comparable employee, by a person in the same grade employed in the same class of employment and in the same district."
3. §650(a) is further elucidated by Rule 15(e) of 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 the 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 use 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."
4. I find that there is no comparable employee for purposes of the rule and the statute. All of the information supplied by the claimant suggests that she was the only one hired for a single day's work, and that the other employees were all regular employees. While the claimant was clearly an employee for purposes of the Workers' Compensation Act, she was a casual worker, and no evidence has been produced to prove the average weekly wage for a casual worker either for the same employer or within the general community.
5. All of the evidence suggests that the claimant's agreed rate of pay was consistent with the rate of pay of other casual or temporary laborers in central Vermont. Therefore, it is appropriate to use the agreement between the claimant and the employer "as to both expected hours per week and rate of pay...to determine the average weekly wage." This is particularly true when the parties agree as to those terms, that the claimant was hired for one day only at the rate of $7.00.
6. I find that the claimant's average weekly wage is $56.00, for eight hours of work at $7.00 an hour.
7. The claimant not having prevailed is not entitled to an award of attorney's fees. Therefore, her failure to file a copy of her fee agreement is irrelevant.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is ordered that Continental Insurance Company, or in the event of its default Can Do Special Events, pay the claimant temporary and permanency benefits, to the extent that they have not already been paid, based on an average weekly wage of $56.00.
DATED at Montpelier, Vermont this 5th day of October 1996.
________________________________
Mary S. Hooper
Commissioner