Arbtin v. Puritan Manufacturing Co.5/17/2005
age weekly wage."
The determination of how the average weekly wage of a workers' compensation claimant should be calculated is a question of law. Ramsey v. State, 259 Neb. 176, 609 N.W.2d 18 (2000). Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own determinations. Id.
Neb. Rev. Stat. ยง 48-126 (Reissue 2004), which includes how compensable wages should be calculated in workers' compensation cases, provides in relevant part:
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. The calculation shall also be made with reference to the average earnings for a working day of ordinary length and exclusive of earnings from overtime.
The only evidence presented at trial by either party regarding what would constitute a normal workweek for Arbtin was a wage statement detailing the hours worked by Arbtin for Puritan in the 26 weekly pay periods prior to his work-related accident. The statement shows that for the nine weekly pay periods preceding his work-related injury, Arbtin earned $12.50 per hour, and that for the other weeks detailed in the wage statement, he earned $11.50 per hour. For the 26 weekly pay periods preceding Arbtin's work-related injury, the number of hours Arbtin worked were: 37.75 hours in week 1 ending on March 19, 2000, 39.75 hours in week 2, 40 hours in week 3, 50.75 hours in week 4, 42.5 hours in week 5, 39.5 hours in week 6, 40 hours in week 7, 47.75 hours in week 8, 47.25 hours in week 9, 48.75 hours in week 10, 43.25 hours in week 11, 42.5 hours in week 12, 40.5 hours in week 13, 39.25 hours in each of weeks 14 and 15, 31.75 hours in week 16, 45 hours in week 17, 40 hours in week 18, 44.25 hours in week 19, 46.75 hours in week 20, 45.75 hours in week 21, 43 hours in week 22, 32.5 hours in week 23, 39.75 hours in week 24, 40 hours in week 25, and 44.75 hours in week 26 ending on September 10, 2000. As Arbtin testified at trial, and as Puritan and Columbia admitted in their brief, the low number of hours worked by Arbtin during weeks 16 and 23 was the result of a work shortage.
In the parties' briefs, each cites extensively to Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990). In Canas, the employee's average workweek was 45 to 50 hours, and in the 6 months preceding his work-related injury, "each of [the employee's] workweeks was not less than 44.03 hours or more than 50.87 hours, with seven exceptions. In those 7 weeks, [the employee] worked 20.77, 37.43, 34.75, 14.35, 36.63, 7.78, and 36.75 hours, respectively." Id. at 167, 459 N.W.2d at 536. It was uncontroverted that the employee's shortened workweeks were "due to vacation time incurred in moving his family from Texas to Nebraska, sick leave, and holidays." Id. at 167, 459 N.W.2d at 536-37. The employer in Canas argued that "there would be fluctuations in an employee's workweeks preceding an accident" and that therefore the proper way to calculate an average weekly wage would be to multiply the actual number of hours the injured employee worked in the 26 weeks preceding an accident by the employee's hourly wage and then divide by 26. Id. at 167-68, 459 N.W.2d at 537.
The Nebraska Supreme Court disagreed with the employer, stating:
The fallacy of the [employer's]
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