Appellate Court Published Case That Analyzes Inclusion of Concurrent Wages in the Calculation of Employee's AWW

12.9.2017

On 9/8/17, the Appellate Court published a case that analyzes inclusion of concurrent wages in the calculation of employee’s AWW. The general rule under section 10 of the Act states that when the employee is working concurrently with two or more employers and the employer has knowledge of such employment prior to the injury, employee’s wages from all such employers shall be used in the calculation of AWW.

In the instant case, the employer had knowledge of the employee’s service as a pastor while being employed with the employer; however, was unware whether the employee was being paid as a pastor. As such, the analysis focused on the definition of “employment” as it relates to the employer’s knowledge of the concurrent employment at the time of the injury. The Arbitrator excluded the concurrent wages as, while the employer was aware that the employee served as a pastor at the time of the injury, there was no credible proof that the employer had knowledge that employee received payment for his work as a preacher. The Commission affirmed. The Appellate Court referenced the Oxford online Dictionary in defining “employment” as the state of “having paid work.” Further, it looked to section 1 of the Act which defines an “employee” as “every person in the service of a person or persons for wages or other payment."

At the Arbitration hearing, the employee admitted that the employer did not have knowledge that he was being paid for his service as a pastor at the time of the accident. As such, the Appellate Court agreed with the Commission and excluded wages received as a pastor in calculating Petitioner’s Average Weekly Wage.

To summarize, the Appellate Court seems to suggest a two-step analysis in addressing whether concurrent wages are to be included in the calculation of the claimant’s AWW:

Did the employer have knowledge of the secondary job at the time of the accident?

Did the employer have knowledge that the employee received payment for the secondary work/job at the time of the accident?

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