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Comegys v. Generations Home Care4/29/2005
Clara Comegys ("the claimant") has filed this appeal from a decision of the Industrial Accident Board ("the Board"). In its decision, the Board determined that the claimant's weekly wages, calculated pursuant to 19 Del. C. ยง 2302, were $431.13. Her workers' compensation award was based upon that calculation. One of the steps in calculating a claimant's weekly wages is to determine the employer's average work week. In this case, the Board calculated an average work week for the employer by averaging the claimant's work weeks for the period from December 27, 2002 through May 30, 2003.
In this appeal, the claimant contends that the Board's calculation of the employer's average work week contains legal error. For the reasons which follow, I agree with the claimant. The case must, therefore, be reversed and remanded to the Board for a new hearing.
FACTS
The claimant began working as a Certified Nursing Assistant for Generations Home Care, Inc. ("the employer") in June of 1997. As a result of her work, she suffered a cumulative detrimental overuse injury to her shoulder which required surgery. The parties agreed to the compensability of the claim and the periods of disability, but were unable to reach an agreement as to the calculation of her wages under the Workers' Compensation Act.
At the hearing before the Board, the claimant testified that her pay per hour was $9.93 for weekdays, $12.93 for weekends, $14.895 for any hours over forty, and $14.895 for holidays. Also admitted into evidence were the claimant's pay stubs for the period from January 1, 2003 to May 30, 2003 and a summary, prepared by claimant's counsel, of her average weekly wage for that time period. The claimant did not present any evidence of the employer's average work week. Counsel for the claimant argued he was unable to do so because the employer never provided him with employee payroll records that were requested during discovery.
The Board also heard the testimony of Shelly Soriano, the clinical nurse manager for Generations. Counsel for the claimant objected to all or part of any testimony that was received from her based upon the employer's failure to produce its employee payroll records in response to his request for production. The Board did not address the employer's failure to produce payroll records and allowed the witness to testify as to her "personal knowledge of her dealings with the Claimant." The employer did not present any evidence of its average work week and did not present any payroll records.
As mentioned, the Board calculated an average work week for the employer by averaging the claimant's work weeks for the period from December 27, 2002 through May 30, 2003. This average, as determined by the Board, was forty hours per week. The Board then applied the claimant's wage rates to the employer's average work week as thus determined, and arrived at a weekly wage for the claimant of $431.13. It awarded compensation of two-thirds of that amount, or $287.42. The Board specifically declined to include overtime hours in its calculations.
CONTENTIONS OF THE PARTIES
The claimant argues that the Board erred in failing to include the claimant's overtime in the calculation of her average weekly wage and in using a forty hour work week in its calculation. The claimant contends that the substantial evidence in the record indicates that her average work week was more than forty hours. She further argues that the employer retained the right to require employees to work overtime, thus making overtime mandatory. Lastly, the claimant argues that she was denied due process when the Board allowed Shelly Soriano to testify despite the fa
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