Carrico v. City of Miami
| Decision Date | 24 April 1990 |
| Docket Number | No. 73056,No. 3,73056,3 |
| Parties | 1990 OK CIV APP 31 Sharon CARRICO, Petitioner, v. CITY OF MIAMI, Own Risk, and the Workers' Compensation Court, Respondent. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Petitioner seeks review of an order of the Workers' Compensation Court sitting en banc which modified the Trial Court's determination of Petitioner's average weekly wage (AWW). Petitioner's counsel stipulated that Petitioner earned $5.97 per hour and worked a 40-hour work week. The Trial Court found Petitioner temporarily totally disabled (TTD) and permanently totally disabled (PTD) arising from job-related injuries. Based on the stipulations of counsel and the evidence adduced, the Trial Court determined Petitioner's AWW for TTD at $183.78 per week, for permanent partial disability (PPD) at $163.00 per week, and for PTD at $183.78 per week. On appeal to the Court en banc, the appellate tribunal modified Petitioner's AWW to $159.34 for TTD, PPD and PTD.
In this original proceeding, Petitioner asserts that the Trial Court correctly determined Petitioner's rates of AWW, 1 and that the en banc order modifying the Trial Court's determination of AWW is contrary to 85 O.S.1981 §§ 21, 22, governing calculation of rates of compensation, and not supported by the evidence. Respondent asserts that Petitioner stipulated to her actual average weekly wage, and that therefore under 85 O.S. § 22(1), Petitioner's AWW for PTD is calculated by multiplying Petitioner's stipulated actual average weekly wage by sixty-six and two-thirds percent (66 2/3%), yielding an AWW rate as determined by the Court en banc. 2
Subsections 1, 2 and 3 of § 21 of Title Eighty-five of Oklahoma statutes provide three methods of calculating average annual earnings from which AWW is then derived under § 21(4). Section 21 provides in pertinent part:
1. If the injured employee shall have worked in the employment in which he was working at the time of the accident whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.
2. If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of of such immediately preceding year in the same or in a similar employment in the same or neighboring place shall have earned in such employment during the days when so employed.
3. If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident.
4. The average weekly wages of an employee shall be one fifty-second ( 1/52) part of his average annual earnings.
March v. Construction Specialties, 783 P.2d 983, 984 (Okl.App.1989). See also, W.E. Shepherd & Son v. Hood, 185 Okl. 635, 95 P.2d 619 (1939); Dunning Const. Co. v. Franklin, 166 Okl. 198, 26 P.2d 914 (1933); City of Norman v. Bowers, 154 Okl. 200, 7 P.2d 482 (1932). The application of § 21(3) "is by its terms limited to situations wherein the first two formulas set out in Subdivisions 1 and 2 respectively are not applicable." Geary Milling & Elevator Co. v. Andis, 422 P.2d 466, 468 (Okl.1967); see also, Massachusetts Bonding & Insurance Co. v. Satterfield, 188 Okl. 154, 108 P.2d 218 (1941). Further, the Court may not rely exclusively on actual earnings in making a determination of average weekly wage. Winrock Farms v. Eldred, 446 P.2d 265 (Okl.1968) (); accord, Safeway Stores v. Mauk, 275 P.2d 987, 989 (Okl.1954). See also, U.S. Gypsum Co. v. Reames, 185 Okl. 528, 94 P.2d 898 (1939) (); accord, Acme Semi-Anthracite Coal Co. v. Manning, 178 Okl. 420, 63 P.2d 76 (1937); Okmulgee Gas Engine Corp. v. State Industrial Commission, 178 Okl. 407, 63 P.2d 86 (1937). And see, Harris Meat & Produce Co. v. Brown, 177 Okl. 317, 59 P.2d 280 (1936) ()
The standard of review of questions concerning AWW is relatively well-established:
The question of which of the first three paragraphs of section 21, supra, applies cannot always be entirely a question of fact. Usually it is a mixed question of law and fact. The determination of whether or not a given claimant has "worked in the employment in which he was working at the time of the accident * * * during substantially the whole of the year immediately preceding his injury * * * " is a question of fact. But, after this question has been determined, the question of which of the first two subsections of section 21, supra, applies is solely a question of law. Safeway Stores v. Mauk, 275 P.2d at 990.
Thus, and insofar as the issue deals with questions of fact, the Trial Court's determination thereon will not be disturbed if supported by competent evidence. Safeway Stores, 275 P.2d at 990. On the other hand, and insofar as the issue deals with a pure question of law, the application of the incorrect formula for determination of a claimant's...
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