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Arbtin v. Puritan Manufacturing Co.5/17/2005
argument can be demonstrated by deleting the following language from § 48-126: "for the period of time ordinarily constituting his or her week's work." Without that clause, the sentence at issue would read: " eekly wages shall be taken to be his or her average weekly income . . . 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." If the statute so read, one would determine the average weekly wage just as the [employer] suggest . Thus, the [employer's] calculation would be the same even if the foregoing language were deleted. However, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. NC+ Hybrids v. Growers Seed Assn., 219 Neb. 296, 363 N.W.2d 362 (1985). We conclude that by inclusion of the clause "for the period of time ordinarily constituting his or her week's work," the Legislature sought to exclude those abnormally low workweeks from the 26-week period used for the calculation.
Canas v. Maryland Cas. Co., 236 Neb. 164, 168, 459 N.W.2d 533, 537 (1990).
Puritan and Columbia assert in their brief that "the Workers' Compensation Court Review Panel's extension of Canas was clearly wrong because Canas does not apply to the instant case." Brief for appellees on cross-appeal at 15. Puritan and Columbia first assert that Canas applies to "situations involving sickness, illness and holidays, not work shortages." Brief for appellees on cross-appeal at 16. It is true that the facts in Canas included an employee who worked a lower-than-normal amount of hours due to moving, sickness, and vacation. However, we see no reason to exclude work shortages from the logic or holding of Canas. Nowhere in Canas did the Nebraska Supreme Court indicate that the holding was limited to the facts of the case or that workers who missed worktime due to illness, vacation, or other reasons should be treated differently than workers whose employers had a lack of work for them to perform. Accordingly, we find that the rationale and holding in Canas regarding average weekly wage calculations extends to work shortages.
Puritan and Columbia next allege that Arbtin's workweeks were not "abnormally low." (Emphasis omitted.) Brief for appellees on cross-appeal at 16. A review of Arbtin's wage statement indicates that if one does not consider the 2 weeks in which he worked lower-than-normal hours, Arbtin averaged a 42.83-hour workweek in the 26 weekly pay periods preceding his work-related injury. During week 16, he worked 31.75 hours, and during week 23, he worked 32.5 hours. Thus, in each of those weeks, he worked more than 10 hours less than he normally worked during the other 24 weeks included in the wage statement. It is clear to us that these weeks did not present "working day of ordinary length" for Arbtin. See § 48-126. Accordingly, we find that the review panel properly excluded weeks 16 and 23 from its calculation of Arbtin's average weekly wage.
Finally, Puritan and Columbia allege that the holding in Canas should apply not only to abnormally low workweeks, but also to abnormally high workweeks. In other words, Puritan and Columbia argue that if we find it is proper to exclude the weeks in which Arbtin worked less hours than he normally did from the calculation of his average weekly wage, we should similarly exclude those weeks in which he worked more hours than normal. Puritan and Columbia, citing Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999), make the proposition that "workers compensation benefits are intended to be equitable, fair and just to both the employe
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