When no overtime can equal more money to a claimant

In Montgomery County v. Deibler, 423 Md. 54 (2011), the Court of Appeals recently held that a loss of ability to work overtime, and the loss of the overtime compensation, is a lessening of an injured employee’s wage earning capacity, as defined in the Labor & Employment Article, §9-615.

The Claimant in this case was injured twice – first on November 26, 2006 and then on March 5, 2008.  Both injuries involved his knee.  Those two injuries, and the physical restrictions that followed, forced the Claimant from his regular duties as a firefighter. 

Prior to his injuries, the Claimant worked 96 hours of non-overtime work on a bi-weekly basis as a firefighter.  After his injuries, the Claimant was placed on “light-duty” and only worked 80 hours on a bi-weekly basis.  However, this reduction in hours did not affect his salary.  Montgomery County boosted his hourly wage and maintained all of his cost of living adjustments and benefits.  This guaranteed that the Claimant earned the same amount of base pay after his injuries as he did prior to his injuries. 

The payroll records showed that the 14 weeks prior to each of his injuries, the Claimant worked 11.9 and 15.4 overtime hours each week, respectively.  Due to physical restrictions after his injuries, the Claimant was unable to work any significant overtime and while on light duty his overtime average was approximately one hour per week.  This translated to nearly an $800.00 per week reduction in income for the Claimant, after he was placed on light duty, following each of his injuries. 

Claimant filed Issues with the Workers’ Compensation Commission (“Commission”), requesting payment of temporary partial disability (“TPD”) benefits.  Maryland law creates a two-step process for payment of TPD benefits.  The first requires a reduction in the claimant’s wage earning capacity.  One this is met, the claimant is entitled to one-half of the difference between his or her pre-injury average weekly wage and his post-injury wage earning capacity.  The Commission found that the Claimant had experienced a reduction in wage earning capacity, and ordered that TPD be paid.  Montgomery County appealed the Commission’s order.  The Circuit Court affirmed the Commission’s order.  Montgomery County again appealed, this time to the Court of Special Appeals.  Before the case could be heard, the Court of Appeals issued a writ of certiorari, taking the case. 

The Court of Appeals held that the term “wage” as used in “wage earning capacity” “includes compensation paid for overtime hours worked prior to temporary partial disability.” 

Among other things, this holding makes the calculation of the Claimant’s average weekly wage (“AWW”), using wages paid during the 14 weeks preceding the accident, all the more important.  If the AWW is not correctly calculated, or the figures used to calculate the AWW are not accurate due to poor record keeping, it opens up the potential for serious additional exposure.  

Article contributed by Andy Nichols