Russell v. Genesco, Inc.

• Citation: 651 S.W.2d 206
• Parties: Della Louise RUSSELL, Plaintiff-Appellee, v. GENESCO, INCORPORATED, Defendant-Appellant. 651 S.W.2d 206
• Decision Date: 09 May 1983
• Court: Supreme Court of Tennessee

Page 206

651 S.W.2d 206

Della Louise RUSSELL, Plaintiff-Appellee, v. GENESCO, INCORPORATED, Defendant-Appellant.

651 S.W.2d 206

Supreme Court of Tennessee.

May 9, 1983.

R.E. Bonner, Jr., McMinnville, for defendant-appellant.

Michael D. Galligan, McMinnville, for plaintiff-appellee.

OPINION

DROWOTA, Justice.

The Defendant, Genesco, Inc., appeals this workers' compensation action, asking us to review the awards granted the Plaintiff. The Defendant concedes the Plaintiff sustained an injury compensable under the workers' compensation laws on September 4, 1980. The Defendant argues that the Chancellor's computations under T.C.A. Sec. 50-902(c) and under an independent workers' contract are flawed. In addition, the Defendant challenges the Chancellor's ruling that it is liable for certain medical expenses, in the absence of evidence that the expenses were necessary and reasonable.

The testimony of the witnesses establishes that the Plaintiff worked for the Defendant six years prior to the time she brought this suit. During that six-year period, the Plaintiff performed outstanding work for the Defendant and had worked herself up to an average hourly wage of three dollars and seventy cents ($3.70). In late October of 1979, the Plaintiff suffered a wrist injury, and she was paid temporary total disability for six weeks. She was also paid an additional weekly compensation wage in accordance with the terms of an independent contract between the Defendant and its employees. The personnel manager for the Defendant, Austin Golden, testified that the Plaintiff's disability payments for her 1979 injury were calculated on a 40-hour work week. The Plaintiff returned to work in January of 1980, but found, after several attempts to work, her wrist injury prevented her from performing her required tasks. She left work during the latter part of January and returned around mid-June of 1980. It appears she worked for a week and then left again to have gallbladder surgery. She returned to work on September 4, 1980, the day on which she suffered the injury to her back.

The Defendant introduced into evidence its payroll records which show the Plaintiff's earnings during the 52-week period immediately preceding her September, 1980, injury to be as follows:

                 9/12/79  $ 83.68
                 9/19/79   148.56
                 9/26/79    88.30
                10/03/79   111.04
                10/10/79   142.98
                10/17/79    86.34
                 1/09/80    26.59
                 1/16/80   156.51
                 1/23/80    26.85
                 6/18/80    49.60
                          -------
                TOTAL:    $920.45
                

Those records also show that the Plaintiff did not receive a paycheck in January or February of 1979, that she received wages for only one week in March and only a week in May. She testified that her irregular work attendance was due to a "lot of sickness and things." We note the Plaintiff received the same wages for none of the weeks between January 3, 1979, and September 12, 1979.

The Chancellor computed the Plaintiff's average weekly wages on the basis of the testimony that she earned $3.70 per hour and that her disability payments for her 1979 injury were computed on a 40-hour work week. He concluded that the Plaintiff's average weekly wages were $148, and he found her compensation rate to be $98.66. The Chancellor did not consider the Plaintiff's actual earnings because he opined that actual earnings were only relevant in computing the average weekly wages of a part-time employee. He implicitly found the Plaintiff was not a part-time employee. The Defendant argues that since the Plaintiff's gross wages for the 52-week period immediately preceding the date of the Plaintiff's injury were $920.45, paid in ten separate weekly pay periods, the Plaintiff's average weekly wages as defined by T.C.A. Sec. 50-902(c) should be $92.04 (the earnings for the past 52 weeks divided by the number of weeks in which the Plaintiff received wages).

Section 50-902(c) provides, in relevant part, as follows:

Average weekly wages shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during such period when he did not work, although not in the same week, then the earnings for the remainder of such fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. ¹

The method of calculating the average weekly wages for employees under this section has been the subject of some uncertainty. For, while the statute clearly addresses the instance of a regular worker of a forty-hour week, it offers little guidance in computing the average weekly wages for part-time employees and irregular or intermittent employees. Nor does it address the case of the regular employee, whose weekly wages vary because of the nature of the employment. This Court, therefore, has had the duty of carving out the methods of computing average wages as to these special cases. The court has done so, guided by the broad equitable intent of the legislature to compensate, adequately, injured employees and by the judiciary's duty to reach results which are fair to both the employer and the employee.

As regards part-time employees, we have said that average weekly wages should be determined by dividing the total actual wages of the 52-week period by the number of weeks in which the employee received wages. E.g., McKinney v. Feldspar Corp., 612 S.W.2d 157 (Tenn.1981); Gaw v. Raymer, 553 S.W.2d 576 (Tenn.1977). This Court has also addressed the question of how the average weekly wages should be computed for one employed intermittently or irregularly. In Toler v. Nashville, C. & St. L. Ry., 173 Tenn. 378, 117 S.W.2d 751 (1938), the employee worked for the employer for more than ten years, but was only assigned work as it became available. During the year prior to his injury, he worked fourteen weeks. The Court determined that the proper method of computation was to divide the total wages received during the year by the number of weeks in which the employee received wages. This method is the same as that for computing the average weekly wages of a part-time employee.

Since the Chancellor found the Plaintiff was a regular employee of the Defendant, and since there is evidence to support that finding, we turn to cases in which this Court has addressed the method of computation for regular employees. In Carter v. Victor Chemical Works, 171 Tenn. 141, 101 S.W.2d 462 (1937), the claimant's deceased had been regularly employed by the defendant for all the year before his death and several years prior thereto. The trial judge arrived at the deceased's average weekly wages by dividing the total earnings for the year preceding his death by 52. On appeal, the claimant argued that while the deceased was regularly and exclusively employed by the defendant the entire year, and worked some part of each of the 52 weeks, he did not work every day of every week, nor the same number of hours in all the days, and that, therefore, his average weekly wages should be arrived at by taking the total number of days he actually worked, and breaking this number of days down into weeks, and dividing the total sum of wages for the year by this number of weeks.

The record in Carter showed that the deceased worked days in each of the 52 weeks. In some weeks he worked seven days, in others, six days, and so forth. The only explanation appearing for the variation from week to week was the stipulated fact that in some weeks there was more work to do than in others. In affirming the trial court, this Court held (1) that the proper method of computing the average wages of a regular employee was to total his earnings and divide by 52, and (2) that in deciding which "lost" days could be deducted from the 52 weeks, only sickness, other disabilities and fortuitous events could be considered. The Court noted, in Carter, that the weekly variableness in earnings was not due to sickness or fortuitous events, but was a normal and recognized incident of the deceased's regular employment.

The claimant in the case of Braggs Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87 (1930) (Petition to rehear, 161 Tenn. 687, 34 S.W.2d 714 (1931)), was regularly employed in loading rock at so much per car. And, while his working time was subject in part to the weather conditions, it appeared that he worked only "when it suited him." In the year preceding the accident, the claimant worked on an average of less than 3 days per week, and his average wages during the period were $12.50 per week. There were only 4 weeks during the year that the claimant worked the full 6 days. His average earnings for the 4 weeks were $22.50. It was insisted that the average wages received for the weeks in which the claimant put in full time...