When using an AWW from employment other than that which caused the injury is actually appropriate.
Plaintiff was last injuriously exposed to asbestos at a time when his comp rate would have been $600.00. He was diagnosed with mesothelioma approximately 15 years later, after retiring. His average weekly wage during his post-retirement, part-time employment would have resulted in a comp rate of $54.78.
The discrepancy was huge. What did the Court think was most fair?
The Plaintiff worked for UPS for many years, where it was ultimately determined that he was last injuriously exposed to asbestos, resulting in mesothelioma. He was diagnosed with mesothelioma approximately 15 years after he retired from UPS. At the time of his diagnosis, he was working part-time, driving a van for church. His average weekly wage during this post-retirement employment would have resulted in a compensation rate of $54.78. His average weekly wage during his final year of employment with UPS, on the other hand, would have resulted in a compensation rate of approximately $600.00.
The parties disputed which of these two employments should be used in calculating his AWW—the 52 weeks preceding his retirement (the final year with Defendant-Employer), or the 52 weeks preceding his diagnosis, several years after he was last injuriously exposed?
At the Deputy Commissioner level the Plaintiff prevailed, and a compensation rate of nearly $600.00 was awarded. However, the case ultimately made its way up to the Court of Appeals, and the decision was reversed. The COA found that in order to produce a result that “most accurately reflects the wages [employee] would have continued to earn, but for his diagnosis with mesothelioma, and [that] is fair and just to both parties,” the wages from the 52 weeks preceding his diagnosis should be used. Thus, the Court used the earnings from the Plaintiff’s subsequent, part-time employment (driving the van) under “method 5” of N.C.G.S. § 97-2(5).
This made a huge difference in the Defendants’ ultimate exposure—the Plaintiff’s estate was awarded 500 weeks of death benefits at a compensation rate of approximately $600.00 at the Deputy Commissioner level. The COA disagreed and awarded 500 weeks at the compensation rate of $54.78.
Key Takeaways from the Penegar case:
- We all know it can be very difficult to collect on a “credit” for already-paid TTD, if a court determines the defendants have overpaid.
- Wages from a subsequent employer can and should be used in circumstances such as this, when a plaintiff receives a diagnosis subsequent to his separation from defendant-employer company.