Richard Beavers Constr., Inc. v. Wagstaff

Decision Date01 March 2018
Docket NumberNo. 1977, Sept. Term, 2016,1977, Sept. Term, 2016
Citation180 A.3d 211,236 Md.App. 1
CourtCourt of Special Appeals of Maryland

Argued by: James A. Turner (Godwin, Erlanderson & Daney, LLC, on the brief) Ellicott City, MD, for Appellant.

Argued by: Jeffrey A. Miller (Law Office of Jeffrey A. Miller, PA, on the brief) Baltimore, MD, for Appellee.

Panel: Meredith, Berger, Arthur, JJ.*

Arthur, J.

Under the Maryland Workers' Compensation Act, employees who suffer disabling injuries in work-related accidents receive compensation to help offset their lost earning capacity. The amount of compensation is determined as a percentage of the employee's "average weekly wage" at the time of the accident.

This appeal concerns the proper determination of the average weekly wage for an employee who became disabled in a workplace accident just six weeks after he was hired to work full time at a construction company. As a result of inclement weather, he had worked substantially less than 40 hours per week in the six weeks before the accident. During that time, he received payment only for hours when he actually worked.

The parties presented the Workers' Compensation Commission with only two options for determining the employee's average weekly wage. The employee contended that his average weekly wage should be based on the 40–hour work week for which he had been hired; the employer and its insurer contended that the average weekly wage should be no higher than the average of the actual earnings from the six weeks before the accident. After a hearing, the Commission agreed with the employee and awarded him compensation based on wages from a 40–hour work week.

The employer and insurer sought judicial review, and the Circuit Court for Talbot County confirmed the Commission's decision. The employer and insurer have appealed to this Court. Because they have not shown that the Commission's decision is premised on an error of law, we affirm the judgment confirming the decision.


The factual record for this case consists of testimony and documents offered to the Workers' Compensation Commission and some additional materials submitted to the circuit court in the judicial review proceeding. Neither the veracity of the testimony nor the accuracy of the documents are in question.

In the circuit court, the parties purported to "agree" that there was no dispute as to the underlying facts, but they did not prepare any formal stipulation to clarify their agreement. Although the parties continue to assert that there are no factual disputes, they have not given this Court an agreed statement of facts. Their respective briefs present competing factual summaries, each emphasizing certain facts at the expense of others. In fairness to all parties, this opinion will begin by examining all facts identified by the parties (including those facts that one side or the other may have declined to discuss).

A. Mr. Wagstaff's Employment with Richard Beavers Construction, Inc.

The employee in this case, Dexter Wagstaff, began working as a lift operator for Richard Beavers Construction, Inc. (RBCI), on or around February 15, 2013. RBCI agreed to pay Mr. Wagstaff at a rate of $18.95 per hour. According to Mr. Wagstaff, RBCI hired him to work "full time," meaning "40 hours a week[.]" Although he needed to be available to work eight hours a day for five days a week, his supervisors instructed him not to report to the construction site on days when it was raining or snowing. He did not receive payment for hours or days when he could not work because of poor weather.

Mr. Wagstaff often worked full, eight-hour days during his first six weeks of employment, but frequent rain and occasional snow prevented him from working full, 40–hour weeks. RBCI's records show that, during that six-week period, he worked an average of only 16.75 hours per week, for which he received average gross earnings of $317.41 per week.1 His highest totals occurred in his sixth week of employment, when he worked three full days (24 hours) and earned gross wages of $454.80. Poor weather was the only reason that he ever missed a day of work with RBCI.

B. The Accidental Personal Injury and Resulting Disability

On the morning of April 1, 2013, Mr. Wagstaff suffered an accidental injury at the construction site when he fell through the roof and landed face-first on the warehouse floor, 18 feet below.

The following summary of his injuries was later presented to the Commission:

He was knocked unconscious. He sustained multiple facial injuries, which included a fractured skull, two fractured cheekbones, a fractured right eye orbital, multiple chipped teeth with his front tooth knocked out, fractured nasal bone. In addition, he injured his neck, his thoracic spine, his left shoulder, his back, and his left knee.

An ambulance transported Mr. Wagstaff to Peninsula Regional Hospital, where he underwent an array of tests. Because of the severity of his injuries, he was airlifted by helicopter to the University of Maryland's Shock Trauma Center. There, a surgical team "performed an eight-hour surgery to Mr. Wagstaff's right eye socket and placed titanium plates and screws in his right and left cheeks."

Upon his discharge, Mr. Wagstaff continued to suffer from his injuries. He soon returned to the emergency room, and he was hospitalized for another three days for various symptoms, including: headaches, dizziness, vertigo, loss of consciousness, double-vision, irritability, insomnia, short-term memory loss, and other effects of post-concussion syndrome. For over a year after the accident, he underwent frequent occupational therapy to help him cope with the neurological effects of his injury, as well as the continuing pain in his neck and shoulder.

Although the accident occurred on April 1, 2013, RBCI paid Mr. Wagstaff $758.00 for a full 40 hours for the week that ended on April 3, 2013. For a short time thereafter, RBCI continued to send him paychecks in the amount of $758.00.

C. Proceedings before the Workers' Compensation Commission

Three weeks after the accident, on April 22, 2013, Mr. Wagstaff submitted a claim with the Workers' Compensation Commission. On the claim form, he reported his "Gross Weekly Wages" as $758.00, the amount that he would earn from working 40 hours at the rate of $18.95 per hour.

In response, RBCI submitted its payment records. RBCI claimed that Mr. Wagstaff had actually earned an average of $317.38 per week during the six weeks before the accident.

On May 31, 2013, the Commission issued an order stating that Mr. Wagstaff had sustained an injury arising out of and in the course of his employment and that he was temporarily totally disabled as a result. The Commission ordered RBCI and its insurer, Selective Way Insurance Company, to pay for Mr. Wagstaff's medical treatment. Based on the information that had been submitted at the time, the Commission determined that Mr. Wagstaff's average weekly wage was $317.38 as of the date of the accident. Using the statutory formula for compensation based on temporary total disability (see Md. Code (1991, 2016 Repl. Vol.), § 9–621 of the Labor and Employment Article ("LE") ), the Commission ordered RBCI and Selective Way to pay Mr. Wagstaff two-thirds of that figure, which the Commission rounded up to $212.00 per week. The order expressly reserved "the right of both parties to have the issue of average weekly wage [a]djudicated at the first hearing before the Commission."

On April 16, 2014, the Commission held a hearing to address the issue of Mr. Wagstaff's average weekly wage, as well as his various requests to authorize continuing medical treatment. In introductory remarks, RBCI and its insurer asserted that the average weekly wage was "$317.44 per the wage statement." Through counsel, Mr. Wagstaff announced that he was "contesting" that issue and that his average weekly wage should be $758.00, based "on the 40–hour week at $18.95 an hour[.]" The Commission informed the parties that it would "have to take testimony on that [issue]" and "determine the wage based on the evidence presented" at the hearing.

On the wage issue, Mr. Wagstaff gave the following testimony:

Q: ... [W]ere you hired full time or part time by Mr. Beavers?
A: Full time.
Q: All right. Is that 40 hours a week?
A: Yes.
* * *
Q: Sir, were you working full weeks when you were hired? Did you work a 40–hour week?
A: Yes, if it didn't rain.
Q: All right. Now, if it rained, what happened?
A: We don't work.
Q: Would you be at work though? Would you go to work?
A: No, we was told not to.
Q: Were you called by the employer to not work?
A: No, we just know not to go when it rain.
Q: All right. Other than for bad weather, were there any other reason that you wouldn't go to work?
A: No.
Q: So it was just for bad weather during that time.
A: Yes, because we was outside on the roof.
Q: All right. And I assume, sir, based on the pay stubs ... that the employer and insurer showed us, there were a lot of weeks where you didn't work 40 hours. Was that all because of weather?
A: Yes.

The only other witness on the wage issue was Mr. Richard Beavers, the owner of RBCI. Mr. Beavers assured the Commission that the records of Mr. Wagstaff's hours were accurate because he had been hired for "a government project" for which the payroll needed to be "certified every week" by RBCI's bookkeeper. Although he admitted that he did not personally hire Mr. Wagstaff, Mr. Beavers recalled that he did not "promise" that Mr. Wagstaff could work "any exact number of hours[.]" Mr. Beavers testified that he indicated to Mr. Wagstaff "that he could work when work was available[.]" When asked whether he was "aware that [Mr. Wagstaff] was hired on a full-time basis," Mr. Beavers answered: "I would assume so."

Mr. Beavers also testified that, in the week of the accident, he paid what he called "a full check" to Mr. Wagstaff in the amount of $758.00, "based on a 40–hour week." Mr. Beavers...

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