How Much Do I Get Paid While Out On Workers Comp?

How much do I get paid while out on workers comp?

The Workers’ Compensation Insurance Company will pay two-thirds of your average weekly wage for every day you miss from work with a doctor’s excuse. You do not get paid for the first three days until you missed two weeks of work. These payments are called temporary total benefits. Temporary total is paid until you have reached maximum medical improvement. Maximum medical improvement means that temporary total benefits. are paid until such time as the doctor says that your condition is now permanent and you will not get any better and no further treatment will help you.

Initially, average weekly wage is calculated by adding the last 14 weeks of gross pay before the accident together and then dividing by fourteen and this produces your average pay over that period. Workers compensation then pays you as part of your Maryland Workers Comp benefits two thirds of that number. If you have missed time from work for other reasons during those previous 14 weeks than this will affect the amount you are paid while you are off.

The Workers Compensation Commission may take testimony on why these days were missed and may exclude those periods from consideration. If, you worked more hours around the time of the accident but less hours for other weeks this will affect the average. Overtime is included as long as it occurred within the 14 weeks. Vacation or sick time for which you were not paid may be excluded from this calculation. The Workers Compensation Commission may use any other method they feel is appropriate to determine what your average weekly wage is if the commission feels the 14-week method is not the best method to determine your average weekly wage.

In calculating wages in addition to your salary, the Maryland workers comp commission must also consider housing allowance, lodging allowance, personal use of business vehicle, meals provided by employer, and rent subsidy provided by employer. Fringe benefits such as health insurance, pension benefits, 401K, IRA, lost vacation time are not included in the calculation of average weekly wage. This seems unfair since health and pension benefits could exceed the value of actual wages paid and often result in a lower wage because these benefits are paid in lieu of wages. Tips are included as part of the average weekly wage.

In calculating average weekly wage, periods of involuntary layoff and involuntary authorized absences are not included in the 14 weeks. Average weekly wage calculations should only include the weeks the employee actually worked as well as vacation days paid. If you worked less than 14 weeks because you are a new employee than only the actual weeks worked should count. If your employer laid you off for a week or longer or failed to put you on the schedule for a week or longer those weeks should not count. Bonuses owed or incurred prior to the injury but not paid until after the injury should be considered.

Second jobs income will not be considered as part of your average weekly wage. In addition, if you choose to work your second job, while unable to work the job you were injured on, you will not be eligible for temporary total although you may be eligible for temporary partial.

The Maryland statute that defines temporary total and average weekly wage is set out below.

Md. LABOR AND EMPLOYMENT CODE ANN Sec. 9-621

  • PART III. TEMPORARY TOTAL DISABILITY
  • 9-621. Payment of compensation
  • (a)  Amount of payment. —
  • (1) Except as provided in paragraph (2) of this subsection, if a covered employee is temporarily totally disabled due to an accidental personal injury or an occupational disease, the employer or its insurer shall pay the covered employee compensation that equals two-thirds of the average weekly wage of the covered employee, but:
    • (i) does not exceed the average weekly wage of the State; and
    • (ii) is not less than $ 50.
  • (2) If the average weekly wage of the covered employee is less than $ 50 at the time of the accidental personal injury or the last injurious exposure to the hazards of the occupational disease, the employer or its insurer shall pay the covered employee compensation that equals the average weekly wage of the covered employee.
  • (b)  Duration of payment. — The employer or its insurer shall pay the compensation for the period that the covered employee is temporarily totally disabled.

§ 9-618. Scope of part

A covered employee who is temporarily totally disabled due to an accidental personal injury or an occupational disease shall be paid compensation in accordance with this Part III of this subtitle.

  • 9-620. Waiting period for compensation
  • (a)  Disability for 14 days or less. —  If a temporary total disability lasts for 14 days or less, compensation may not be allowed for 3 calendar days after the beginning of the disability except for payments for hospital, nursing, or other medical services, funeral expenses, or medicine.
  • (b)  Computation of waiting period. —  If the covered employee was not paid for the day on which the accidental personal injury or occupational disease occurred, the Commission shall count that day as 1 of the 3 days in the waiting period under subsection (a) of this section.
  • (c)  Disability for more than 14 days. —  If a temporary total disability lasts for more than 14 days, compensation shall be allowed from the day of disability.
  • 09.03.06

The Workers Compensation Commission has passed its own regulation on guidance on how to arrive at the average weekly wage. See below:

Workers Compensation Commission Regulations .06 Average Weekly Wage

  • Preliminary Determination. For the purpose of making an initial award of compensation before a hearing in the matter, the Commission shall determine the claimant’s average weekly wage from gross wages, including overtime, reported by the claimant on the employee’s claim form.
  • Filing of Wage Statement. As soon as practicable, the employer/insurer shall file a wage statement containing the following information:
  • (1) The average wage earned by the claimant during the 14 weeks before the accident, excluding the time between the end of the last pay period and the date of injury, provided that periods of involuntary layoff or involuntary authorized absences are not included in the 14 weeks;
  • (2) Those weeks the claimant actually worked during the 14 weeks before the accident;
  • (3) Vacation wages paid; and
  • (4) Those items set forth in Labor and Employment Article, §9-602(a)(2), Annotated Code of Maryland.
  • Determination at First Hearing.
  • (1) Calculation of the average weekly wage shall be adjudicated and determined at the first hearing before the Commission.
  • (2) All parties shall be prepared to produce evidence from which the Commission can determine an accurate average weekly wage at the first hearing.
  • (3) If the Commission determines that an inaccurate average weekly wage resulted in the overpayment or underpayment of benefits, the Commission may order:
  • (a) A credit against future permanent disability benefits;
  • (b) The payment of additional compensation; or
  • (c) Any other relief the Commission determines is appropriate under the circumstances.
  • Uninsured Employers’ Fund. The Uninsured Employers’ Fund may contest the average weekly wage determined by the Commission under §A or C of this regulation, along with other issues as authorized by Labor and Employment Article, §9-1002, Annotated Code of Maryland, by filing issues on the form prescribed by the Commission.

Md. LABOR AND EMPLOYMENT Code Ann. § 9-602

  • 9-602. Average weekly wage
  • (a)  Computation — In general. —
  • (1) Except as otherwise provided in this section, the average weekly wage of a covered employee shall be computed by determining the average of the weekly wages of the covered employee:
    • (i) when the covered employee is working full time; and
    • (ii) at the time of:
      • the accidental personal injury; or
      • the last injurious exposure of the covered employee to the hazards of an occupational disease.
    • (2) For purposes of a computation under paragraph (1) of this subsection, wages shall include:
      • (i) tips; and
      • (ii) the reasonable value of housing, lodging, meals, rent, and other similar advantages that the covered employee received from the employer.
    • (3) If a covered employee establishes that, because of the age and experience of the covered employee at the time of the accidental personal injury or last injurious exposure to the hazards of the occupational disease, the wages of the covered employee could be expected to increase under normal circumstances, the expected increase may be taken into account when computing the average weekly wage of the covered employee under paragraph (1) of this subsection.
  • (b)  Baltimore County — Auxiliary police officer or member of volunteer fire company. —  For the purpose of computing the average weekly wage of an auxiliary police officer of Baltimore County who is a covered employee under § 9-220(a) of this title or a member of a volunteer ambulance, ambulance and rescue, or fire company in Baltimore County who is a covered employee under § 9-234 of this title, the wages of the covered employee shall be:
  • (1) if the covered employee had other employment at the time of the accidental personal injury or last injurious exposure, the salary or wages from the other employment;
  • (2) if the covered employee had had other employment but was not otherwise employed at the time of the accidental personal injury or last injurious exposure, the salary or wages last received by the covered employee from the other employment; or
  • (3) if the covered employee had never had other employment at the time of the accidental personal injury or last injurious exposure, an amount that allows minimum death or disability benefits under this title.
  • (c)  Fire fighters — Department of Natural Resources. —  For the purpose of computing the average weekly wage of an individual engaged for fire fighting by the Department of Natural Resources who is a covered employee under § 9-207 of this title, the wages of the covered employee shall be:
  • (1) the greater of:
    • (i) any salary or wages received by the covered employee for fire fighting; or
    • (ii) any salary or wages earned by the covered employee in other employment at the time of the accidental personal injury or last injurious exposure; or
  • (2) if the covered employee did not receive wages for fire fighting or from other employment at the time of the accidental personal injury or last injurious exposure, an amount that allows the minimum compensation or death benefits under this title.
  • (d)  Handicapped student. —  For the purpose of computing the average weekly wage of a handicapped student who is a covered employee under § 9-228(a) of this title, the wages of the covered employee shall be the federal minimum wage that is in effect at the time of the accidental personal injury or last injurious exposure.
  • (e)  Jockey. —  For the purpose of computing the average weekly wage of a jockey who is a covered employee under § 9-212 of this title, the wages of the covered employee shall be all of the earnings that the jockey earns as a jockey, including those derived from outside the State.
  • (f)  Member of organized militia. —  For the purpose of computing the average weekly wage of a member of the organized militia of the State who is a covered employee under § 9-215 of this title, the wages of the covered employee shall be the greater of:
  • (1) the wage provided for active duty in § 13-406(b) of the Public Safety Article;
  • (2) the actual wages earned by the covered employee in employment in the National Guard; or
  • (3) the actual wages earned by the covered employee in the employee’s civilian employment at the time of entry into State active duty.
  • (g)  Member of volunteer fire or rescue company. —
  • (1) Subject to paragraph (2) of this subsection, for the purpose of computing the average weekly wage of an individual who is a covered employee under § 9-234 of this title, the wages of the covered employee shall be:
    • (i) for a covered employee who received a salary or wages from other employment at the time of the accidental personal injury or last injurious exposure, the salary or wages from the other employment; or
    • (ii) for a covered employee who did not receive a salary or wages from other employment at the time of the accidental personal injury or last injurious exposure:
      • if the covered employee derived income from a source other than salary or wages at the time of the accidental personal injury or last injurious exposure, an amount that allows the maximum compensation under this title;
      • if the covered employee was not engaged in a business enterprise at the time of the accidental personal injury or last injurious exposure, the weekly income last received by the covered employee when engaged in a business enterprise; or
      • if the covered employee had never been engaged in a business enterprise at the time of the accidental personal injury or last injurious exposure, an amount that allows the minimum compensation under this title.
    • (2) A yearly stipend of $ 5,200 or less to help offset out-of-pocket expenses that a volunteer company, as defined in § 9-234 of this title, pays to a member may not be used when determining the average weekly wage of the member.
  • (h)  Prisoner. —  For the purpose of computing the average weekly wage of a prisoner who is a covered employee under § 9-221 of this title, the wages of the covered employee shall be:
  • (1) the wages paid to the prisoner by the county; and
  • (2) a fair and reasonable amount determined by the Commission for meals and maintenance of the prisoner, but not more than the amount customarily received by the county for its own use by prisoners engaged in employment by other employers.
  • (i)  Recipient under federal veterans’ benefit law. —  For the purpose of computing the average weekly wage of a covered employee whose wages from full-time employment are paid partly by an employer and partly by the United States under a federal veterans’ benefit law, the wages of the covered employee shall be the total amounts jointly paid to the covered employee when working full time.
  • (j)  Volunteer deputy sheriff of Cecil County. —  For the purpose of computing the average weekly wage of a volunteer deputy sheriff of Cecil County or an auxiliary volunteer of the Charles County Sheriff’s Office who is a covered employee under § 9-233 of this title, the wages of the covered employee shall be:
  • (1) if the covered employee had other employment at the time of the accidental personal injury or last injurious exposure, the wages from the other employment;
  • (2) if the covered employee had had other employment but was not otherwise employed at the time of the accidental personal injury or last injurious exposure, the wages last received by the covered employee from the other employment; or
  • (3) if the covered employee had never had other employment at the time of the accidental personal injury or last injurious exposure, an amount that allows minimum compensation under this title.
  • (k)  Juror. —  For the purpose of computing the average weekly wage of a juror who is a covered employee under § 9-213(a) of this title, the wages of the juror shall be the per diem received by the juror for jury duty.
  • (l)  Covered employees with more than one employer. —
  • (1) This subsection applies only to a covered employee who:
    • (i) has suffered:
      • a serious permanent partial disability under § 9-630 of this subtitle; or
      • a permanent total disability under § 9-637 of this subtitle;
    • (ii) was concurrently employed by more than one employer at the time of the accidental personal injury;
    • (iii) worked, on average, 20 hours per week or less in the employment in which the accidental personal injury occurred; and
    • (iv) as a result of the accidental personal injury, is unable to work at any employment the covered employee was engaged in at the time of the accidental personal injury or any similar type of employment.
  • (2)
    • (i) If the covered employee earned weekly wages from another employment that exceeded the weekly wages the covered employee earned from the employment in which the accidental personal injury occurred, the average weekly wage of the covered employee shall be based on the weekly wages the covered employee earned in the other employment.
    • (ii) If the covered employee earned weekly wages from two or more other employments and, for more than one of such employments, the weekly wages earned by the employee exceeded the weekly wages of the covered employee from the employment in which the accidental personal injury occurred, the average weekly wage of the covered employee shall be based on weekly wages of the employment where the employee earned the highest wages.
  • (3) This subsection may not be interpreted as:
    • (i) except as provided in §§ 9-630 and 9-637 of this subtitle, relieving from liability to pay compensation the employer in whose employment the accidental personal injury occurred;
    • (ii) creating any liability to pay compensation on the part of another employer in whose employment the accidental personal injury did not occur; or
    • (iii) requiring the weekly wages from the employments the employee was engaged in at the time of the accidental personal injury to be combined for purposes of computing the average weekly wage of the covered employee.

Disputes about average weekly wage arise when someone is hired full time but do to conditions beyond their control full time may need be available especially when employment first starts.

HEADNOTE: Richard Beavers Construction, Inc., et al. v. Dexter Wagstaff, No. 1977, Sept. Term, 2016. Opinion by Arthur, J.

WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE

Neither statute nor regulation nor case law strictly requires the Workers’ Compensation Commission to calculate the average weekly wage of a covered employee using an average of the actual earnings before an accidental injury. For some newly-hired employees, the actual earnings before the injury may not accurately represent what the employee normally would earn from the employer. The Workers’ Compensation Commission is not required to calculate average weekly wage using the actual earnings from the period before an accident where: (1) the employer hired the employee for the stated purpose of working “full time,” meaning 40 hours per week; (2) the employee suffered a disabling injury only a short period of time after being hired; (3) the employee worked substantially less than 40 hours per week during that period; and (4) other circumstances call into question whether the actual hours worked during that period accurately represented the employee’s normal working hours.

In this case, the Commission determined an employee’s average weekly wage based on the 40-hour work week for which he had been hired, instead of using the actual hours during the six weeks he worked prior to the accident, which were shortened by inclement weather. Given that the parties presented only those two, imperfect options, the Commission’s determination was not incorrect as a matter of law. Under the circumstances, it was not unreasonable to conclude that multiplying the hourly rate by 40 hours would result in the better approximation of what the employee normally would earn from the employer under the contract that was in existence at the time of the injury.

This appeal concerns the proper determination of the average weekly wage for an employee who became disabled in a workplace accident just six weeks after he was hired to work full time at a construction company. As a result of inclement weather, he had worked substantially less than 40 hours per week in the six weeks before the accident. During that time, he received payment only for hours when he actually worked.

If in fact the statute said that average weekly wage must be computed using earnings from the “actual weeks worked prior” to the accident, then we might be persuaded by their interpretation. But the statute does not use those words, or other similar words that might have expressed that same meaning. Instead, it uses a more unusual wording: “the average of the weekly wages of the covered employee . . . when the covered employee is working full time[.]” The meaning of that phrase is not immediately clear for an employee such as Mr. Wagstaff, who was hired for the purpose of working full time, but who was not actually working those full-time hours before the accident. See Stevenson v. Hill, 171 Md. 572, 576 (1937) (

See 5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 93.02[1], at 93-28 (2013) (observing that “lack of a full-time employment record” is “[t]he most familiar” of the “various circumstances which would make [a] claimant’s actual earnings during a particular past period an unreliable measure of his or her future earnings capacity”). If the six-week sample significantly understated his normal working hours, then using it to determine his benefits would result in an unwarranted windfall for the employer and insurer.

Looking beyond LE § 9-602, the parties offer competing interpretations of one of the Commission’s regulations. The Workers’ Compensation Act broadly empowers the Commission to “adopt regulations to carry out” the Act. LE § 9-309. More specifically, it directs the Commission to “adopt reasonable and proper regulations to govern the procedures of the Commission, which shall be as simple and brief as reasonably possible” (LE § 9-701(1)), and to “regulate and provide for the nature and extent of evidence and proof and for the method of taking and providing evidence and proof to establish a right to compensation[.]” LE § 9-701(4). Under this authority, the Commission promulgated COMAR 14.09.03.06, which establishes the procedure for determining an employee’s average weekly wage.

Sections (A), (B), and (C) of this regulation outline a three-stage process. In the first stage, the Commission makes a preliminary determination based on the amount reported by the employee. COMAR 14.09.03.06(A) provides:

  1. Preliminary Determination. For the purpose of making an initial award of compensation before a hearing in the matter, the Commission shall determine the claimant’s average weekly wage from gross wages, including overtime, reported by the claimant on the employee’s claim form.

In the next stage, the employer or its insurer must promptly produce documentation of the actual wages earned by the employee in a 14-week period preceding the accident. COMAR 14.09.03.06(B) states:

  1. Filing of Wage Statement. As soon as practicable, the employer/insurer shall file a wage statement containing the following information:

(1) The average wage earned by the claimant during the 14 weeks before the accident, excluding the time between the end of the last pay period and the date of injury, provided that periods of involuntary layoff or involuntary authorized absences are not included in the 14 weeks; (2) Those weeks the claimant actually worked during the 14 weeks before the accident;

(3) Vacation wages paid; and (4) Those items set forth in Labor and Employment Article, § 9-602(a)(2), Annotated Code of Maryland.[8]

The third stage is the hearing stage, in which the parties may present other evidence so that the Commission may make an accurate determination:

  1. Determination at First Hearing.

(1) Calculation of the average weekly wage shall be adjudicated and determined at the first hearing before the Commission.

(2) All parties shall be prepared to produce evidence from which the Commission can determine an accurate average weekly wage at the first hearing.

COMAR 14.09.03.06(C)(1)-(2).

It does not purport to require the Commission to use any particular method of calculation. By implication, it suggests that, “[u]sually,” the Commission will calculate average weekly wage “by adding gross wages that the employee earned in the fourteen weeks preceding the accidental personal injury and dividing the sum by fourteen.” Long v. Injured Workers’ Ins. Fund, 448 Md. at 267 (emphasis added).

A reading of the entire regulation, however, shows that the 14-week wage statement is not the only evidence that the Commission may consider. If the wage statement were conclusive, then there would be no need for a hearing at which “[a]ll parties” must be prepared to “produce evidence from which the Commission can determine an accurate average weekly wage[.]” COMAR 14.09.03.06(C)(2). Fairly read, this regulation permits parties to offer other evidence to contest whether the 14-week wage statement accurately represents what the employee would earn from the employer under the contract in existence at the time of the injury.9

Our reading of the regulation conforms with the analysis of the leading case on the subject: Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37 (1993). The regulation in effect at that time “stat[ed] that, ‘unless otherwise ordered after the hearing, compensation payments shall be based on . . . the average wage earned by the employee during the thirteen weeks before the accident.’” Id. at 40 (quoting former version of COMAR 14.09.01.05(B)).

9 Accord Theodore B. Cornblatt, et al., Maryland Workers’ Compensation Manual 48 (18th ed. 2017) (recommending that counsel for claimants “must investigate to see if the earnings during the 14-week period are not typical of the claimant’s true earnings background” and should not “merely rely on the employer/insurer’s figure”).

The employee in that case, Mr. Gross, had worked at a construction firm for two years before being injured. Id. at 41. On his claim form, Mr. Gross reported that his wages were $11.00 per hour, from which the Commission initially determined that his average weekly wage was $440.00. Id. The employer submitted a wage statement showing that Mr. Gross earned an average of $282.20 during the 13 weeks prior to the accident. Id. At a hearing, Mr. Gross presented an income tax form showing that he had earned approximately $400.00 per week throughout the 52 weeks preceding the accident. Id. at 42. He argued that, “given the nature of the heavy construction industry in which [he] worked, the yearly earnings better represented his earning capacity.” Id. The Commission agreed with him and found that his average weekly wage was $400.00. Id.

The Court of Appeals rejected the employer’s argument that the statute and regulation required the Commission to use the earnings from the 13 weeks before the accident to determine average weekly wage. The Court noted that the statute itself “does not specify a particular time period to be used in calculating a worker’s average weekly wage.” Id. at 39. Thus, “prior to the promulgation of a regulation specifying a time period for calculating [an] injured worker’s average weekly wage, the Commission was free to choose an appropriate period on a case-by-case basis.” Id. at 50. The Court concluded:

The Commission’s [regulation] appears to be designed to address the vast majority of cases in which there is no hearing. In such cases, it provides a definite rule in lieu of a case-by-case basis. The regulation also supplies a standard in those cases in which there is a hearing but where no question arises concerning the appropriate time period or where the Commission decides that it should not depart from the thirteen-week rule. Nevertheless, . . . in a case where there is a hearing, the regulation does not purport to restrict the Commission in any manner from utilizing a different time period if the Commission deems it appropriate to do so.

The clause directing employers and insurers to exclude “periods of involuntary layoff or involuntary authorized absences” from the wage statement is still notable for another reason. By rejecting data from those periods, the Commission implicitly has recognized that a raw average of actual earnings is not the best measure of earning capacity if that average accounts for time in which an employee involuntarily lost the opportunity to work. It would be difficult to reconcile this feature of the regulation with the strict interpretation of the statute offered by the appellants.

Only one case cited by the appellants comes close to addressing the issues implicated here: Stevenson v. Hill, 171 Md. 572 (1937). That case does not concern the specific problem of a limited sample size, but it does generally address how to determine average weekly wage when the employee has a discontinuous work schedule.

The employee in that case sustained a fatal injury in 1933 while working as an inspector for a coal company. Id. at 573. “Because of the general economic depression, and especially [the depression] in coal mining,” the mine had operated infrequently in the months before the accident. Id. at 574. The employer’s mines were open for an average of 203 days during the year before the accident, and it was undisputed that this time of operation was no shorter than that of other mines in the region. Id. at 574-75.

In Jung v. Southland Corp., 351 Md. at 171-72, the Court held that the Commission may not recalculate average weekly wage based on a wage increase that occurred after the date of the injury. The opinion does not address whether the Commission may determine average weekly wage based on the hours generally discussed at the time of hiring, before the injury. In Long v. Injured Workers’ Ins. Fund, 448 Md. at 255, the Court held that a sole proprietor’s average weekly wage ordinarily should be based on the proprietorship’s net profit, because net profit is the “best approximation of the earnings that a sole proprietor actually takes home[.]” Id. For newly-hired employees such as Mr. Wagstaff, we do not accept the generalization that actual pre-accident earnings are the best approximation of what the employee takes home. Under many circumstances, an approximation based on the hours discussed at the time of hiring would be more accurate than a calculation based on earnings from a small and arguably unrepresentative time period.

Commission determined the employee’s average weekly wage using his earnings from slightly over one year before the accident, during which he had worked 202 days. Id. at 574.

Challenging that decision, the employee’s widow contended that “the basis under the statute” for calculating average weekly wage was what the employee would have earned “if the mines had been working to capacity, or to the limit of daily and weekly working time in the region, eight hours a day for six days a week[.]” Id. at 575. The Court rejected that theory and explained that the statutory term “full time” referred to “‘all the time the mines in the region,’ including the mine of [the employer] ‘were generally employed.’” Id. (quoting Campbell Coal Co. v. Stuby, 159 Md. at 288). The Court reasoned that “variation in working time, reducing opportunities to earn, must be a factor in the computation of average of weekly wages earned.” Stevenson v. Hill, 171 Md. at 577. The Court endorsed the view that average weekly wage should reflect the “‘earnings in a normal week, regard being had to the known and recognized incidents of the employment[.]’” Id. at 578 (quoting Anslow v. Colliery Co., [1909] A.C. 435, 437 (1909)).13

“inability to work because the job site is closed” because of weather “should be taken into consideration when calculating average weekly wage.” Although we might accept that general proposition, the evidence presented here regarding the employee’s normal work hours is not comparable to the evidence from Stevenson v. Hill. There, the record included the employee’s 53-week earning history and information about the employer’s days of operation in a full year before the accident, which they had agreed were no shorter than those of others in the region. Stevenson v. Hill, 171 Md. at 574-75. Under those circumstances, the claimant could not reasonably dispute that the 53-week earnings history was representative of what the employee would earn working all the time his employer and other employers in the region were generally operating.

The same cannot be said here. RBCI and its insurer relied exclusively on the wage statement covering the six-week period before the accident. They did not provide information about the total hours (including any overtime) that lift operators for RBCI, or similarly-situated employees at RBCI or comparable firms, normally work throughout the year. It is conceivable that RBCI or Selective Way could have compiled that type of information, because workers’ compensation insurance premiums are typically based on audits of the employer’s payroll figures. See Richard P. Gilbert et al., Maryland Workers’ Compensation Handbook § 9.06[1], at 9-58 (3d ed. 2007). They had ample opportunity to present that type of information, either at the hearing before the Commission or to the circuit court for a de novo determination. See generally Bd. of Educ. for Montgomery Cnty. v. Spradlin, 161 Md. App. 155, 187-88 (2005). Instead of doing so, RBCI and its insurer simply insisted throughout this case that, as a matter of

32

law, evidence of what Mr. Wagstaff earned during the six weeks before his injury is conclusive proof of his average weekly wage.

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