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Crouse v. Hy-Point Dairy Farms, Inc.

Superior Court of Delaware, Sussex

July 22, 2015

JERRY CROUSE, Appellant,

Submitted: April 7, 2015

Upon an Appeal from the Decision of the Industrial Accident Board.

Nicole M. Evans, Esquire, The Law Offices of Andrea G. Green, Attorney for Appellant.

Andrew J. Carmine, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Attorney for Appellee.


Richard F. Stokes, Judge

Before the Court is an appeal from the Industrial Accident Board ("IAB"), brought by Jerry Crouse ("Appellant"). Appellant seeks to reverse IAB's determination that calculated workers' compensations rates for injuries Claimant sustained while employed by Hy-Point Dairy Farms, Inc. ("Employer").

Appellant asserts IAB erred by excluding the amount of partial disability payments received and utilizing figures not supported by substantial evidence on the record to compute the compensation rates due. IAB and Employer maintain IAB properly excluded Appellant's partial disability payments from the workers' compensation rate equation and employed accurate figures based on the evidence of record yielding calculations that were free from legal error.

The Court has reviewed the record, and submissions by the parties and AFFIRMS the decision of IAB for the reasons set forth therein.


Appellants sustained two injuries while working for Employer.[1] Following the second injury, Employer paid for Appellant's medical treatment and lost wages in the form of total disability benefits.[2]

The parties agree Appellant was entitled to workers' compensation benefits, but disagree as to the amount owed.[3] On September 17, 2014, Appellant filed a Motion with IAB contesting the compensation rate.[4] Both parties agree that the gross wages earned by Appellant for work performed during the twenty-six week period is $15, 054.74, but Appellant contends the average weekly wage ("AWW") calculation incorrectly excluded partial disability payments.[5]

On October 29, 2014, IAB held a hearing regarding the disputed AWW and the following contentions for IAB's consideration were submitted.[6] Appellant contends the language of AWW is ambiguous.[7] To that effect, Appellant claims: (1) the weeks considered should be the weeks actually worked, not the total twenty-six weeks, and (2) partial disability payments received as part of workers' compensation benefits should be included in the AWW calculation.[8] According to Appellant, the amount of partial disability received, $1, 739.41, should be added to the earned wages, and then this amount should be divided by a total of twenty-two weeks, not twenty-six weeks.[9] Appellant's calculations yielded an AWW of $763.37 and a compensation rate of $508.91.[10]

Conversely, Employer asserts Section 2302 is unambiguous and should be interpreted according to the plain meaning of the statute.[11] Employer states "the law provided no basis for adding any of his workers' compensation benefits to his 'wage' total."[12] Employer calculated the compensation rate without including the partial disability payments but adding in vacation pay.[13] Employer submits the rate should be derived by adding together the wages earned, $15, 054.74, and the vacation pay, $625.00.[14] Next, Employer contends in order to "fairly and accurately" calculate AWW, the total wages earned should be divided by twenty-six weeks, as opposed to twenty-two weeks.[15] Employer's calculations yielded an AWW of $603.07, and a compensation rate of $420.05.[16]

On November 24, 2014, IAB made the following determinations: (1) the proper divisor is the number of weeks actually worked, and (2) workers' compensation benefits, such as partial disability payments, are not included in the total wages earned.[17] In this case, IAB determined the partial disability Appellant received, $1, 739.41, should not be added to the earned wages, and the total wages earned should be divided by twenty-two weeks reflecting the number of weeks Appellant actually worked.[18] As such, IAB determined the AWW by utilizing the total wages earned, without including compensation received for disability or vacation pay, over the twenty-six week period preceding the accident, $15, 054.74, and divided by twenty-two.[19] Thus, by IAB's calculations, Appellants' AWW is $684.31, yielding a compensation rate of $456.21.[20]

Appellant timely appealed IAB's decision to exclude the partial disability payments from the AWW calculation on December 23, 2014.[21] To that effect, Appellant filed an Opening Brief on February 13, 2015 seeking reversal of IAB's decision.[22] On March 19, 2015, Employer responded by answering brief noting their non-objection to the divisor of twenty-two and requesting this Court to affirm IAB's decision as to the exclusion of partial disability payments.[23]


The facts in this case are not in dispute.[24] Appellant has been employed by Employer for over twenty years as a driver and salesman. Appellant sustained an injury while working for Employer on August 26, 2013 ("initial injury"). Following the initial injury, Appellant received partial and total disability due to physical restrictions that prevented Appellant from working his regular job. When Employer was unable to offer light-duty work, Appellant was entitled to total disability benefits and full compensation pursuant to an agreement with Employer's prior workers' compensation benefits carrier. When it was feasible, Appellant worked light-duty to accommodate Appellant's physical restrictions. Appellant earned a reduced wage and was ...

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