Workers’ Compensation – Average Weekly Wage – Termination of Benefits – Overpayment – Permanent Partial Disability – Credit

Thomas v. Richmond Yarns, Inc. (Lawyers Weekly No. 11-08-0962, 10 pp.) (Danny Lee McDonald, Commissioner) Appealed from Opinion & Award of Deputy Commissioner Phillip A. Holmes. I.C. No. 193743.

Holding: Plaintiff had not worked for defendant for a full 52 weeks before his compensable injury. Defendant has gone out of business, and the records of a “similar” employee cannot be obtained. However, plaintiff’s actual wages are reflected in the Form 22 wage chart. Plaintiff’s average weekly wage is thus calculated by dividing his gross earnings provided on the Form 22 wage chart by the number of weeks and parts thereof during which plaintiff earned wages.

Taking into account defendant’s under-calculation of plaintiff’s average weekly wage, defendant’s payment of temporary total disability benefits past the date termination of benefits was approved, and the permanent partial disability rating of plaintiff’s injured finger, plaintiff is entitled to $427.61 in permanent partial disability benefits.

Defendant filed a Form 24 application to stop benefits based on plaintiff’s release to full duty. The application was properly approved on Sept. 2, 2009, effective as of the date of its filing on July 30, 2009. However, defendant had already paid plaintiff temporary total disability benefits through Sept. 3, 2009.

Defendant is entitled to a credit for its overpayment against any permanent partial disability benefits due to plaintiff. That amount is reduced by the $1.60 per week defendant underpaid plaintiff’s temporary total disability benefits.

Plaintiff’s injured finger was assigned permanent partial disability ratings of 10 and 20 percent. We average those and award plaintiff permanent partial disability based on a rating of 15 percent.