| IN RE: DIANA K. STEPHENS | ) | DOCKET NO. 89 0717 |
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| CLAIM NO. K-002774 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Diana K. Stephens, by
- Tom G. Cordell
- Employer, American Legion, Chief Moses Post 209, by
- Richard Zornes and William Rigsby, Board Members, and
- Petie Greenwalt, Manager
- Department of Labor and Industries, by
- Office of the Attorney General, per
- Venita M. Lang, Assistant, and Gary McGuire, Paralegal
This is an appeal filed by the claimant on March 8, 1989 from an order of the Department of Labor and Industries dated February 10, 1989 which adhered to the provisions of a Department order dated November 14, 1988, which adjusted the claimant's compensation rate due to the addition of wages earned in a second job she had at the time of her industrial injury. Time loss compensation was paid for the period from April 2, 1988 through November 2, 1988 less a deduction for prior time loss compensation paid for the same period. Reversed and remanded.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department of Labor and Industries to a Proposed Decision and Order issued on February 27, 1990 in which the order of the Department dated February 10, 1989 was reversed and the claim was remanded to the [2] Department "to calculate Ms. Stephens' time-loss compensation benefits in accordance with the formula provided".
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The claimant, Diana K. Stephens, injured her back on August 29, 1986 while employed by the American Legion as a bartender. At the time of her injury, she was also working, part-time, for The Turf, a restaurant in Moses Lake, Washington.
The issue presented in this appeal is the correct rate of compensation Ms. Stephens should have received for the period from April 2, 1988 through November 2, 1988. The Department determined Ms. Stephens' rate of compensation, in part, by dividing the amount earned during 1986 from The Turf by 12.
RCW 51.08.178 provides the statutory basis for computing wages for the purpose of determining a worker's time loss compensation rate. The current statute (as amended in 1988) allows the Department to average a worker's wages if that person is a part-time worker. RCW 51.08.178(2). However, the statute in effect at the time of Ms. Stephens' injury did not permit such averaging. In re Teresa Johnson, BIIA Dec. 85 3229 (1987). Prior to the 1988 amendment, RCW 51.08.178 provided that a worker's time loss compensation rate would be calculated by multiplying the daily wage the worker was receiving at the time of injury by the appropriate multiplier, depending on the number of days per week that the worker was "normally employed". The daily wage was the product of the [3] hourly wage multiplied by the number of hours the worker was "normally employed." There is no question that the Department failed to comply with the prior version of RCW 51.08.178, i.e., the version of the statute which is clearly applicable to this claim.
Unfortunately, the record before us is not entirely clear with respect to Ms. Stephens' monthly wage from her employment with The Turf. It is clear that there is no dispute as to the wages earned and hours worked by the claimant for the American Legion. Ms. Stephens did not protest the orders paying time loss until her employment at The Turf was factored in by the November 14, 1988 Department order. Furthermore, a review of the record, including the claimant's Memorandum of Authorities and the Notice of Appeal, does not indicate any dispute regarding wages at the American Legion job.
On the other hand, the record as to the days normally worked by Ms. Stephens at The Turf is ambiguous. Instead of obtaining the requisite information from the employer at the outset, the Department simply divided the wages on Ms. Stephens' W-2 form by 12. Even the Department would have to concede that that method was incorrect since claimant only worked at The Turf through August 1986 (eight months, not twelve) and the industrial injury precluded her from continuing to work beyond that date.
The claimant herself testified that at the time of the injury she was working thirty hours per week at The Turf and earning $4.65 per hour. According to her co-worker, Pamela Tea, a normal shift was ten hours. Claimant further stated that until August 1986 (that is, from January 1985 through July 1986) her normal schedule was ten to twenty [4] hours per week and her increased hours in August of 1986 were due to the fact that her employer was on vacation. This leads us to believe that once her employer returned, her hours would have returned to ten to twenty per week.
This being the case, it is apparent that her "normal" hours of employment at the Turf were ten to twenty hours (or one to two days per week), with a daily wage of $46.50 (10 hours X $4.65 = $46.50). See, In re Ubaldo Antunez, BIIA Dec. 88 1852 (1989). The difficulty comes in deciding which multiplier, five (for one day per week) or nine (for two days per week), is appropriate.
Since Ms. Stephens' unrebutted testimony is that she worked between one and two days each week, we conclude that she "normally" worked 1.5 days per week. We round that up to two days per week (See, In re Miguel S. Maya, Dckt. No. 87 1874 (December 2, 1988) at 5) and therefore use a multiplier of nine. The result is that Ms. Stephens' monthly wage from The Turf equals $418.50. That is the figure which the Department must use in recomputing Ms. Stephens' time loss compensation rate.
FINDINGS OF FACT
1. On January 23, 1987, the Department of Labor and Industries received an accident report from the claimant, Diana K. Stephens, alleging that she sustained an industrial injury on August 29, 1986 while employed by the American Legion, Chief Moses Post 209.
On February 27, 1987, the Department issued a determinative order paying the claimant time loss compensation beginning February 3, 1987. [5]
On November 14, 1988, the Department issued an order adjusting the compensation rate due to the addition of wages earned in a second job at the time of the injury. Time loss compensation for the period from April 2, 1988 through November 2, 1988 was paid in the amount of $3,178.08, less a deduction for time loss compensation previously paid for the same period in the amount of $2,916.48.
On December 2, 1988, the Department received a protest and request for reconsideration of the November 14, 1988 Department order from the claimant. On February 10, 1989, the Department issued an order adhering to the provisions of the Department order dated November 14, 1988.
On March 8, 1989, the Board of Industrial Insurance Appeals received a notice of appeal from the February 10, 1989 Department order from the claimant. On March 29, 1989, the Board issued an order granting the appeal, assigning it Docket No. 89 0717, and ordering that further proceedings be held on the issue raised.
2. On August 29, 1986 while in the course of her employment with American Legion, Chief Moses Post 209, Diana K. Stephens experienced an industrial injury to her back while lifting ice buckets.
3. At the time of her industrial injury, the claimant, Diana K. Stephens, was employed, part-time by the American Legion, Chief Moses Post 209, and part-time at The Turf Restaurant.
4. At the time of her industrial injury, the claimant was earning $4.65 per hour from The Turf.
5. Ms. Stephens was employed at The Turf from January 1985 through August 1986. At the time of her injury, Ms. Stephens was normally employed by The Turf restaurant for ten to twenty hours per week. Her normal shift was ten hours. [6]
6. The Department calculated claimant's monthly wage from The Turf at the time of injury by dividing the figure on her 1986 W-2 form by twelve.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- The amendments to RCW 51.08.178 found at Laws of 1988, ch. 161, ] 12, pp 698-699, have prospective effect only and may not be retroactively applied to this injury, occurring on August 29, 1986.
- Pursuant to RCW 51.08.170 (1980), claimant's monthly wage from her employment at The Turf restaurant was $418.50. This figure is derived by first determining the daily wage (ten hours X $4.65 per hour = $46.50) and then multiplying $46.50 X nine pursuant to RCW 51.08.178(1)(b), since claimant was normally employed two (1.5 rounded up to two) days per week.
- The order of the Department of Labor and Industries dated February 10, 1988 which adhered to the provisions of the Department order dated November 14, 1988 which adjusted the compensation rate due to the addition of wages earned in a second job at the time of injury and paid time loss compensation for the period from April 2, 1988 through November 2, 1988, in the amount of $3,178.08, less a deduction for time loss compensation paid for the same period in the amount of $2,916.48, is incorrect and is reversed. The matter is remanded to the Department to recalculate and pay time loss compensation to the claimant for the period from April 2, 1988 through November 2, 1988 based on a monthly wage at The Turf Restaurant at the time of injury of $418.50. [7]
It is so ORDERED.
Dated this 8th day of October, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member