Richard BeaversConstruction, Inc., et al. v. Dexter Wagstaff, 2018 Md. App. Lexis 207 (Md. Ct. Spec. App. March 1, 2018).
The Maryland Court of Special Appeals recently issued an opinion in Richard Beavers Construction, Inc., et al. v. Dexter Wagstaff which discusses how to correctly calculate employees’ average weekly wage. There, Richard Beavers Construction, Inc. (“RBCI”) hired Dexter Wagstaff (“Wagstaff) to work forty (40) hours per week at $18.95 an hour. Although Wagstaff needed to be available to work eight (8) hours a day for five (5) days per week, his supervisors instructed him not to report to the construction site on days when it was raining or snowing. Wagstaff did not receive payment for these hours and days where he did not work because of poor weather. Wagstaff did not miss any additional time from work, other than the time missed for poor weather. In the six (6) weeks leading up to the accident, RBCI’s records show that Wagstaff worked an average of only 16.75 hours per week, for which he received average gross earnings of $317.41 per week.
Three (3) weeks after the accident, Wagstaff submitted a claim with the Workers’ Compensation Commission. He reported his “Gross Weekly Wages” as $758.00, the amount that Wagstaff would earn from working forty (40) hours at the rate of $18.95 per hour. In response, RBCI submitted its payment records, claiming Wagstaff earned an average of $317.38 per week for the six (6) weeks prior to the accident. On May 31, 2013, the Commission issued an order which determined Mr. Wagstaff’s average weekly wage to be $317.38. The order, however, expressly stated that both parties have the right to have the issue of average weekly wage adjudicated at the first hearing before the Commission.
On April 16, 2015, the Commission held a hearing on Wagstaff’s average weekly wage. Wagstaff testified as to how he was hired full-time, and how the only time he missed was due to poor weather. The owner of RBCI testified that though he did not personally hire Wagstaff, he recalled that he did not promise that Wagstaff could work “any exact number of hours,” but rather he “could work when work was available.” When asked whether Wagstaff was hired on a full-time basis, the owner of RBCI answered: “I would assume so.” Later that day, the Commission issued an order stating Wagstaff’s true average weekly wage was $758.00.
In coming to a decision, the Court of Special Appeals reviewed the longstanding case law which suggests that average weekly wage should project what the employee would have gone on to earn if not for the accidental injury.  The Court of Special Appeals concluded that the Commission’s decision was not premised on an error of law, for there is no statute, regulation, or case law which suggests that a worker’s six (6) week earnings history, without more, is conclusive evidence of what that worker would expect to earn in a normal week. The Court of Special Appeals further indicated that RBCI should have provided additional evidence at the hearing demonstrating the total hours that similarly-situated employees at RBCI, or comparable firms, normally work throughout the year.
 Crowner v. Balt. United Butchers Ass’n, 226 Md. 606, 610 (1961).