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Blodgett-McDeavitt v. University of Nebraska12/7/2004
gs." We agree with the review panel that evidence exists on the record which supports the award of the trial court with regard to Blodgett-McDeavitt's injury and medical causation reports. Accordingly, we affirm the trial court's holding.
(c) Payment of Benefits
The University next argues that the trial court erred in awarding Blodgett-McDeavitt permanent partial disability benefits, vocational rehabilitation, and payment of medical expenses. Again, the University's arguments are all based on the credibility of the evidence on which the trial court relied. Because evidence exists on the record to support the findings of the trial court, we affirm its award.
3. Average Weekly Wage
Finally, the University argues that the review panel erred in reversing the trial court's calculation of Blodgett-McDeavitt's average weekly wage. We find that the trial court incorrectly included Blodgett-McDeavitt's prior part-time salary in the calculation of her average weekly wage. Because Blodgett-McDeavitt earned a set monthly salary at the time of her alleged injury , Neb. Rev. Stat. § 48-121(2) (Reissue 1998) provides that she be compensated the salary she was earning at the time of the accident, without consideration of the part-time salary she had earned approximately 3 months prior to the date of the alleged injury.
On June 2, 1997, Blodgett-McDeavitt was employed with the University as an instructional design specialist in the continuing education department. Prior to June 2, Blodgett-McDeavitt worked at the University in a part-time capacity as a graduate assistant. As a graduate assistant, Blodgett-McDeavitt earned a fixed monthly salary of $1,175 per month. As an instructional design specialist, Blodgett-McDeavitt earned a fixed monthly salary of $2,269.67. At the time of the alleged injury , September 11, Blodgett-McDeavitt was earning her instructional design specialist salary of $2,269.67 per month.
The trial court calculated Blodgett-McDeavitt's average weekly wage at $488.45 by averaging Blodgett-McDeavitt's part-time salary, which she received prior to June 2, 1997, and Blodgett-McDeavitt's full-time salary, which she received after June 2, including the date of the accident. The trial court stated that Blodgett-McDeavitt was in continuous employment and that accordingly, her average weekly wage must be calculated as the average of her weekly wage over the 26 weeks prior to her accident, including both her part-time salary and her full-time salary.
The review panel reversed the trial court's calculation, stating that only Blodgett-McDeavitt's salary on the date of the accident was relevant and that averaging Blodgett-McDeavitt's salary to include her part-time salary prior to the accident was incorrect as a matter of law. We agree with the review panel.
Neb. Rev. Stat. § 48-126 (Reissue 2004) provides in pertinent part:
Wherever in the Nebraska Workers' Compensation Act the term wages is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. . . . In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour or by the output of the employee, his or her weekly wages shall be taken to be his or her average weekly income for the period of time ordinarily constituting his or her week's work, and using as the basis of calculation his or her earnings during as much of the preceding six months as he or she worked for the same employer, except as provided in sections 48-121 and 48-122.
(Emphasis supplied.)
Under the rules of st
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