Furrowh v. Abacus Corp.

559 A.2d 1258, 1989 Del. LEXIS 142
CourtSupreme Court of Delaware
DecidedApril 24, 1989
StatusPublished
Cited by2 cases

This text of 559 A.2d 1258 (Furrowh v. Abacus Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Furrowh v. Abacus Corp., 559 A.2d 1258, 1989 Del. LEXIS 142 (Del. 1989).

Opinion

CHRISTIE, Chief Justice:

This is an appeal from a decision of the Superior Court which affirmed the findings of fact and conclusions of law of the Industrial Accident Board (the “Board”). The appellant, Bertha Rochelle Furrowh, sustained an on-the-job injury while she was employed as a part-time security guard by the appellee, Abacus Corporation (“Abacus”). A hearing was held before the Board to determine the appropriate compensation rate for Furrowh. Abacus contended that the correct way to calculate Furrowh’s weekly wages for compensation was to multiply her hourly rate of pay by the hours of an “average work-week” arrived at by averaging the weekly hours of all of its security employees, both part time [1259]*1259and full time. The Board adopted this method of calculating Abacus’s average workweek and based Furrowh’s compensation on the resulting figure. The Board’s decision was affirmed by the Superior Court. Because this Court finds that the use of part-time employees’ working hours in calculating the workweek on which compensation is based is contrary to the policy behind 19 Del. C. § 2302(b) and is inconsistent with the import of our holding in the case of Howell v. Supermarkets Gen. Corp., Del.Supr., 340 A.2d 833 (1975), it revérses the Superior Court.

The evidence presented to the Board showed that Furrowh started working for Abacus in Delaware as a security guard in February, 1982. When Furrowh applied for a security job she asked for a full-time position. Since all the full-time positions were filled, Furrowh accepted work at a part-time position. She was injured in a work related accident on June 15, 1982.

At the time Furrowh worked for Abacus she had a commitment with the United States Army Reserve, which required her to serve one weekend a month and two weeks in the summer. Furrowh testified that this commitment did not prevent her from working full time. She stated that until she accepted her job at Abacus she was employed by another company on a nearly full-time basis, working for that employer an average of between 32 and 40 hours per week.

At the hearing, Lee Nichol testified for Abacus. He stated that he was the Director of Safety and Loss Control for Abacus, and that at the time of Furrowh’s accident he had been Director of Security. Nichol stated that about 20 percent of the security guards employed by Abacus worked full time, while the remaining 80 percent worked part time.

Nichol also introduced into evidence before the Board his calculation of the average workweek of all Abacus’s employees who had a Delaware security guard permit. To arrive at his average workweek, Nichol took the total hours every Abacus security guard employed in Delaware, both part time and full time, had worked in the 10 weeks preceding Furrowh’s injury and then divided this total by the number of weeks worked and the number of employees.

Employing this system, Nichol calculated that the average workweek of a security guard working for Abacus in Delaware was only 23.46 hours per week. Prior to her accident Furrowh had been working for Abacus an average 28.26 hours per week. The average workweek of a full-time security guard working for Abacus was 40 hours per week.

In its opinion, the Board, citing the case of Howell v. Supermarkets Gen. Corp., supra, noted that unless exceptional circumstances are present, an employee who had been available for full-time work before the accident should receive compensation based upon the employer’s average workweek. However, the Board accepted Abacus’s contention that 23.46 hours per week represented its average workweek at the time Furrowh was injured and awarded her compensation based on that figure. The Superior Court affirmed the Board’s ruling.

The question before this Court is the meaning of “average work week” as that phrase is used to calculate the “weekly wages” of an employee entitled to compensation pursuant to 19 Del.C. § 2302(b).1 This Court has previously noted that the language in question in § 2302(b) is somewhat ambiguous. Howell v. Supermarkets Gen. Corp., 340 A.2d at 836. In two [1260]*1260cases, however, this Court found that 19 Del.C. § 2302(b) should be read as requiring that a part-time employee who was capable of working full time should be compensated based on his loss of earning capacity (rather than on his mere loss of part-time earnings). Howell v. Supermarkets Gen. Corp., 340 A.2d at 836; Fitzgerald v. Roy’s Flying “A”, Del.Supr., No. 86, 1970 (per curiam) (Nov. 9,1970) (ORDER) [see Appendix], affg, Del.Super., 266 A.2d 193 (1970).

In the case of Howell v. Supermarkets Gen. Corp., this Court stated that 19 Del. C. § 2302(b):

nowhere provides for compensation benefits limited or geared to part-time earnings. The policy of § 2302 is that earnings be translated into a “weekly wage”.... The controlling factor is the legislative intent to compensate the employee for his loss of earning capacity— not loss of wages earned.

340 A.2d at 836. The court in Fitzgerald v. Roy’s Flying “A”, Del.Super., 266 A.2d 193, affd, Del.Supr., No. 86, 1970 (per cu-riam) (Nov. 9, 1970) (ORDER), likewise noted that “[t]he object of the [workmen’s compensation act] is to compensate for the inroad upon the full-time earning capacity of the victim of industrial mishap ... and of course a part-time job may be the setting of the destruction of an earning unit capable of full-time work_” Id. at 195 n. 1 (quoting Maver v. Dwelling Managers Co., Supr., 34 N.J. 440, 170 A.2d 35, 36 (1961)). The Fitzgerald court also stated that “the ‘weekly wage’ is not the sum paid to an individual during a week when the period of actual work was less than the ‘average work week’ of the employer.” Id. at 194. Accord Frank M. Sheesley Co. v. W.C.A.B. (Brant), 106 Pa.Cmwlth. 227, 526 A.2d 450, 452 (1987). Implicit in the ruling that an injured worker must be compensated for his lost earning capacity, is the notion that a worker with the capacity to work full time must be compensated for loss of that capacity. See 2 Larson Workmen’s Compensation Law § 60.21(e), at 10-670-71 (1987).

Any method of calculating an employer’s average workweek which includes part-time workers will not result in full compensation of an employee for his lost earning capacity — the goal of 19 Del.C. § 2302(b). See Howell v. Supermarkets Gen. Corp., 340 A.2d at 836. In this case, for instance, although Furrowh was capable of working full time at Abacus, because no full-time position was available she was only working part time at the time of the accident, and she averaged only 28.26 hours per week. Thus, she worked, and earned, considerably less than her capability, that of a full-time, 40-hour per week security guard.

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