Gross v. Sessinghause & Ostergaard, Inc., 290

Decision Date01 September 1990
Docket NumberNo. 290,290
Citation584 A.2d 1313,85 Md.App. 727
PartiesIrving R. GROSS v. SESSINGHAUSE & OSTERGAARD, INC. et al
CourtCourt of Special Appeals of Maryland

John K. Burkhardt (Saiontz & Kirk, P.A., on the brief) Baltimore, for appellant.

William S. Tostanoski (Philip T. McCusker and Sweeney and Zacharski, on the brief), Baltimore, for appellee, Sessinghause.

Michael G. Comeau, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen. and Sophia L. Swope, Asst. Atty. Gen., on the brief), Baltimore, for appellee, Subsequent Injury Fund.

Argued before MOYLAN and BISHOP, JJ., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

JAMES S. GETTY, Judge, Specially Assigned.

The single issue presented in this appeal is whether the Circuit Court for Calvert County (Briscoe, J.), in a de novo hearing, correctly calculated the average weekly wage of Irving R. Gross, the appellant herein, who was injured in the course of his employment with Sessinghause & Ostergaard, Inc., the appellee. We shall affirm the judgment entered by the circuit court.

Background

The appellant worked as a construction laborer for two years prior to June 6, 1984, on which date he sustained serious injuries when a tunnel collapsed in the area where he was working. Appellant filed a claim for benefits with the Worker's Compensation Commission, stating that he earned $11.00 per hour. The Commission, without a hearing, passed an award based upon an average weekly wage of $440.00. Apparently, the Commission used the hourly rate on the claim form multiplied by forty hours per week.

The issue of average weekly wage came before the Commission in November, 1987. At that time, appellant submitted a W-2 form for 1983 establishing gross earnings of $20,823.25, which reflects an average weekly wage over 52 weeks of $400.45. The appellee submitted a wage statement for the thirteen week period prior to the injury which indicates an average weekly wage of $282.20. Subsequent to that hearing, the Commission passed an order establishing the average weekly wage to be $400.00, prompting an appeal by the appellee herein to the circuit court.

In November, 1989, the circuit court held a de novo hearing on the average weekly wage issue. Testimony on that issue was presented for the first time and appellant stated that he worked full-time for the appellee while other employees were, on occasion, laid off. In 1983, appellant worked 48 weeks. He also worked the 13 weeks before he was injured.

The court found that the Commission gave no reason for using the prior year's wages in establishing the average weekly wage, rather than using the thirteen-week period set forth in Commission Rule .05 (COMAR sec. 14.09.01.05). Concluding that the Commission does not have "total and complete open-ended authority to just go back to whatever it feels comfortable with and give the claimant what they feel he deserves," the court established the average weekly wage using the thirteen-week period preceding the injury.

Discussion

Article 101, sec. 67(8), Md.Code Ann., provides:

(8) "Average weekly wages" for the purpose of this article shall be taken to mean the average weekly wages earned by an employee when working full time, and shall include tips and the reasonable value of board, rent, housing, lodging or similar advantages received from an employer, and if any employee shall receive wages paid in part by his employer and in part by the United States under any veterans' benefit law enacted by Congress, the term "average weekly wages" shall mean the total average weekly wages from both sources earned by such an employee when working full time.

The method of computation of such wages is promulgated pursuant to rules adopted by the Worker's Compensation Commission. Authority for the adoption of procedural rules is set forth in Article 101, sec. 10, which provides:

Subject to the provisions of this article, the Workmen's Compensation Commission shall adopt reasonable and proper rules to govern its procedure, which procedure shall be as summary and simple as reasonably may be. It shall regulate and provide for the kind and character of notices and the services thereof, and in cases of injury by accident to employees, the nature and extent of the proofs and evidence and the method of taking and furnishing the same for the establishment of the rights to compensation. It shall determine the nature and forms of application of those claiming to be entitled to benefits or compensation, and shall regulate the method of making investigations, physical examinations and inspections and prescribe the time within which adjudications and awards shall be made, provided, always, that all such rules and regulations shall conform to the provisions of this article.

Commission Rule .05 (COMAR sec. 10.09.01.05) sets forth the procedural steps in determining average weekly wage, to-wit:

A. Average weekly wage shall be determined from gross wages, including overtime, and will be determined by the Commission based on the information in the Commission file before the hearing.

B. Notwithstanding § A, unless otherwise ordered after the hearing, compensation payments shall be made based on: (1) The average wage earned by the employee during the 13 weeks before the accident; (2) Those weeks the employee actually worked during the period; (3) Those items set forth in Article 101, § 7(8), Annotated Code of Maryland.

C. Periods of involuntary lay-off, or involuntary authorized absence are not included in the 13 weeks. However, any vacation wages paid shall be included in computing average weekly wage.

D. If payments are made at a rate other than that determined by the Commission in its initial award, the carrier, self-insurer, or State Accident Fund, within 60 days of the date of the initial award shall file with the Commission the basis on which the payments were made and shall serve a copy on the claimant or his attorney of record if represented. (Emphasis supplied.)

The above Rule was adopted by the Commission and became effective July 1, 1983.

In Stevenson v. Hill, 171 Md. 572, 189 A. 910 (1937), the Court of Appeals succinctly set forth that the worker's compensation system has as its foundation a correlation between compensation paid and the amounts paid to workers according to payrolls. The actual earnings furnish the basis of calculating the fund necessary to cover the compensation which is accumulated by insurance with an insurance carrier, the State Accident Fund, or by self-insurance. See Stevenson, at 576-77, 189 A. 910.

The sole issue in Stevenson, as in the present case, was the method of calculating the average weekly wage. The claimant was working full time and argued that the court should take into consideration, in computing the average weekly wage, the earnings that would be generated if the mines were working to capacity, which was not the case in 1937. The court rejected that argument, stating that any computation not based on actual hours worked would be...

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3 cases
  • Ritz v. Myers
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1990
  • Gross v. Sessinghause & Ostergaard, Inc.
    • United States
    • Maryland Court of Appeals
    • September 1, 1991
    ...Mr. Gross took an appeal to the Court of Special Appeals, which affirmed the judgment of the circuit court. Gross v. Sessinghause, Inc., 85 Md.App. 727, 584 A.2d 1313 (1991). The intermediate appellate court recognized that the thirteen- week rule is not absolute. It stated (85 Md.App. at 7......
  • Gross v. Sessinghause & Ostergaard, Inc.
    • United States
    • Maryland Court of Appeals
    • June 3, 1991
    ...A.2d 549 Gross v. Sessinghause & Ostergaard, Inc. NO. 38 SEPT TERM 1991 Court of Appeals of Maryland JUN 03, 1991 Reported below: 85 Md.App. 727, 584 A.2d 1313. ...

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