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Pratt v. Averitt Express2/14/2003
was not deciding "whether the term `wage' takes into account an employee's non-wage income if that employee is regularly compensated by non-wage income."
On July 12, 2002, after trial of the present case, the Supreme Court decided Powell v. Blalock Plumbing and Elec., 78 S.W.3d 893 (Tenn. 2002). That case presented two issues: (1) the meaning of the term "wage" as used in Section 241(a)(1); and (2) whether the employee made a meaningful return to work. As pertinent to this case, the Court held that "the term "wage" in Tenn. Code Ann. § 50-6-241(a)(1) means the hourly rate of pay for an employee who is compensated on an hourly basis." Powell, 78 S.W.3d at 898. The Supreme Court acknowledged that the term "wage" is not defined in the Worker's Compensation Act and a majority of the Court elected to follow the definition adopted in Wilkins.
In two recent decisions, the Supreme Court has differentiated the terms "average weekly wage" and "wage" as used in the Worker's Compensation Act. It has construed the term "wage" to refer to hourly compensation for an employee paid by the hour without regard to any other compensation received by the employee such as overtime. In the present case, the trial court found that Mr. Pratt was paid $17.10 per hour before the injury and $18.12 per hour when he returned to work after the injury. His "wage" following the injury is, therefore, greater than the "wage" he was receiving at the time of injury. (There was no contention that Mr. Pratt did not make a meaningful return to work.) Applying the cap imposed by Tenn. Code Ann. § 50-6-241(a)(1), we find that the award should be modified to 17.5 percent to the body as a whole (two and one-half times the seven percent medical impairment).
Disposition
The judgment of the trial court is modified to award permanent partial disability benefits for 17.5 percent to the body and a whole, and the case is remanded to the trial court for any further proceedings. Costs of the appeal are taxed against the Appellee.
JUDGMENT
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of facts and conclusions of law are adopted and affirmed and the decision of the Panel is made the Judgment of the Court.
The costs on appeal are taxed to the appellee, Dale Pratt, for which execution may issue if necessary.
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