Tuesday, May 02, 2006

Nebraska Court of Appeals excludes periods of salaried compensation when determing a workers average weekly wage when the injured worker performed the same kind of work through the 6 month period before the accidentGriffin v. Drivers Mgmt., Inc., A-05-995, 14 Neb. App. 722 Driver injured while driving for Werner Enterprises' Driver Management division had received both pay for mile driven and a flat salary during the 6 months preceding his work accident. The Court of Appeals rules, Judge Carlson dissenting, that the worker compensation court should calculate the average weekly wage, see 48=126 RRS Neb, by excluding the weeks the employee received a salary and counting only the weeks he was paid by the mile.Including PL's earnings when he was paid a salary and was engaged in a different character of employment would distort Pl's average weekly wage calculation. The trial court correctly calculated PLs average weekly wage, including from the 6 months preceding the accident only the earnings PL was paid based upon his output.

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