Shields v. GTI Corp.

• Decision Date: 24 July 1992
• Citation: 607 So.2d 253
• Parties: E. Wonette SHIELDS v. GTI CORPORATION. 2910256.
• Court: Alabama Court of Civil Appeals

Page 253

607 So.2d 253

E. Wonette SHIELDS v. GTI CORPORATION.

2910256.

Court of Civil Appeals of Alabama.

July 24, 1992.

Rehearing Denied Aug. 28, 1992.

D.L. Martin, Moulton, for appellant.

Don G. DeCoudres, Birmingham, for appellee.

RUSSELL, Judge.

E. Wonette Shields (employee) filed a complaint against GTI Corporation (employer) in this workmen's compensation action. After an ore tenus proceeding, the trial court entered an order finding that the employee was permanently and totally disabled and that the average weekly wage was $229.26. The employee appeals, contending that the trial court erred in its determination of the average weekly wage. We affirm.

The record reveals that the employee began working as a temporary employee for the employer on November 9, 1988, and that she sustained an on-the-job injury on November 22, 1988. The employee was paid a total of $585.48 for the period of time that she was employed, just under two weeks. The employer reported the employee's average weekly wage as being $196.80, or $4.92 multiplied by forty hours. The employer's representative testified that overtime was high at the time the employee was hired and was not representative of the amount of overtime generated throughout the year. She further stated that the employer's plant at Hartselle, where the employee was employed, was in a start-up phase, having opened on June 20, 1988, and that, therefore, efficiency was low and overtime was high during the training of employees.

The employer recommended that the trial court use an average weekly wage, determined by multiplying the hours worked by another employee similarly situated by the wage earned by that employee for the fifty-two weeks from June 20, 1988, the start-up of the plant, to June 20, 1989. Then the number of overtime hours were multiplied by one-half of the hourly rate, and that amount was added to the original amount. The amount of the average weekly wage set by the trial court indicates that it accepted the recommendation. The trial court stated its reasoning in applying the wage of the similarly situated employee as follows:

"In view of the shortness of the time that the [employee] worked at the [employer's] place of business, the temporary nature of her employment and the discrepancy in overtime pay during the initial start up period and beyond, the court finds that the average weekly wage of the similarly situated employee is more just and fair, and should be the true average weekly wage of the [employee]. The court therefore finds that the average weekly wage of the [employee] at the time of her injury was $229.26 generating a compensation rate of $152.85."

The employee first contends that the trial court erred in admitting evidence of the hypothetical earnings of a similarly situated employee for a twelve-month period, of which seven months came after the employee's injury. She also contends that there was no legal evidence that using the actual hours and weeks worked by the employee was not just and fair to the employer. Finally, she contends that there was no evidence to support the trial court's finding of the earnings of a similarly situated employee.

Section 25-5-57(b), Ala.Code 1975, outlines the procedure for the computation of compensation and the determination of average weekly earnings as follows:

"Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings 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 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining...