RICHARD BEAVERS CONSTRUCTION, INC., et al.
Court for Talbot County Case No. 20-C-14-008769
Meredith, Berger, Arthur, JJ. [*]
the Maryland Workers' Compensation Act, employees who
suffer disabling injuries in work-related accidents receive
compensation to help offset their lost earning capacity. The
amount of compensation is determined as a percentage of the
employee's "average weekly wage" at the time of
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.
parties presented the Workers' Compensation Commission
with only two options for determining the employee's
average weekly wage. The employee contended that his average
weekly wage should be based on the 40-hour work week for
which he had been hired; the employer and its insurer
contended that the average weekly wage should be no higher
than the average of the actual earnings from the six weeks
before the accident. After a hearing, the Commission agreed
with the employee and awarded him compensation based on wages
from a 40-hour work week.
employer and insurer sought judicial review, and the Circuit
Court for Talbot County confirmed the Commission's
decision. The employer and insurer have appealed to this
Court. Because they have not shown that the Commission's
decision is premised on an error of law, we affirm the
judgment confirming the decision.
and Procedural Background
factual record for this case consists of testimony and
documents offered to the Workers' Compensation Commission
and some additional materials submitted to the circuit court
in the judicial review proceeding. Neither the veracity of
the testimony nor the accuracy of the documents are in
circuit court, the parties purported to "agree"
that there was no dispute as to the underlying facts, but
they did not prepare any formal stipulation to clarify their
agreement. Although the parties continue to assert that there
are no factual disputes, they have not given this Court an
agreed statement of facts. Their respective briefs present
competing factual summaries, each emphasizing certain facts
at the expense of others. In fairness to all parties, this
opinion will begin by examining all facts identified by the
parties (including those facts that one side or the other may
have declined to discuss).
Mr. Wagstaff's Employment with Richard Beavers
employee in this case, Dexter Wagstaff, began working as a
lift operator for Richard Beavers Construction, Inc. (RBCI),
on or around February 15, 2013. RBCI agreed to pay Mr.
Wagstaff at a rate of $18.95 per hour. According to Mr.
Wagstaff, RBCI hired him to work "full time, "
meaning "40 hours a week[.]" Although he needed to
be available to work eight hours a day for five days a week,
his supervisors instructed him not to report to the
construction site on days when it was raining or snowing. He
did not receive payment for hours or days when he could not
work because of poor weather.
Wagstaff often worked full, eight-hour days during his first
six weeks of employment, but frequent rain and occasional
snow prevented him from working full, 40hour weeks.
RCBI's records show that, during that six-week period, he
worked an average of only 16.75 hours per week, for which he
received average gross earnings of $317.41 per
week. His highest totals occurred in his sixth
week of employment, when he worked three full days (24 hours)
and earned gross wages of $454.80. Poor weather was the only
reason that he ever missed a day of work with RBCI.
The Accidental Personal Injury and Resulting
morning of April 1, 2013, Mr. Wagstaff suffered an accidental
injury at the construction site when he fell through the roof
and landed face-first on the warehouse floor, 18 feet below.
following summary of his injuries was later presented to the
He was knocked unconscious. He sustained multiple facial
injuries, which included a fractured skull, two fractured
cheekbones, a fractured right eye orbital, multiple chipped
teeth with his front tooth knocked out, fractured nasal bone.
In addition, he injured his neck, his thoracic spine, his
left shoulder, his back, and his left knee.
ambulance transported Mr. Wagstaff to Peninsula Regional
Hospital, where he underwent an array of tests. Because of
the severity of his injuries, he was airlifted by helicopter
to the University of Maryland's Shock Trauma Center.
There, a surgical team "performed an eight-hour surgery
to Mr. Wagstaff's right eye socket and placed titanium
plates and screws in his right and left cheeks."
his discharge, Mr. Wagstaff continued to suffer from his
injuries. He soon returned to the emergency room, and he was
hospitalized for another three days for various symptoms,
including: headaches, dizziness, vertigo, loss of
consciousness, double-vision, irritability, insomnia,
short-term memory loss, and other effects of post-concussion
syndrome. For over a year after the accident, he underwent
frequent occupational therapy to help him cope with the
neurological effects of his injury, as well as the continuing
pain in his neck and shoulder.
the accident occurred on April 1, 2013, RBCI paid Mr.
Wagstaff $758.00 for a full 40 hours for the week that ended
on April 3, 2013. For a short time thereafter, RBCI continued
to send him paychecks in the amount of $758.00.
Proceedings before the Workers' Compensation
weeks after the accident, on April 22, 2013, Mr. Wagstaff
submitted a claim with the Workers' Compensation
Commission. On the claim form, he reported his "Gross
Weekly Wages" as $758.00, the amount that he would earn
from working 40 hours at the rate of $18.95 per hour.
response, RBCI submitted its payment records. RBCI claimed
that Mr. Wagstaff had actually earned an average of $317.38
per week during the six weeks before the accident.
31, 2013, the Commission issued an order stating that Mr.
Wagstaff had sustained an injury arising out of and in the
course of his employment and that he was temporarily totally
disabled as a result. The Commission ordered RBCI and its
insurer, Selective Way Insurance Company, to pay for Mr.
Wagstaff's medical treatment. Based on the information
that had been submitted at the time, the Commission
determined that Mr. Wagstaff's average weekly wage was
$317.38 as of the date of the accident. Using the statutory
formula for compensation based on temporary total disability
(see Md. Code (1991, 2016 Repl. Vol.), § 9-621
of the Labor and Employment Article ("LE")), the
Commission ordered RBCI and Selective Way to pay Mr. Wagstaff
two-thirds of that figure, which the Commission rounded up to
$212.00 per week. The order expressly reserved "the
right of both parties to have the issue of average weekly
wage [a]djudicated at the first hearing before the
April 16, 2014, the Commission held a hearing to address the
issue of Mr. Wagstaff's average weekly wage, as well as
his various requests to authorize continuing medical
treatment. In introductory remarks, RBCI and its insurer
asserted that the average weekly wage was "$317.44 per
the wage statement." Through counsel, Mr. Wagstaff
announced that he was "contesting" that issue and
that his average weekly wage should be $758.00, based
"on the 40-hour week at $18.95 an hour[.]" The
Commission informed the parties that it would "have to
take testimony on that [issue]" and "determine the
wage based on the evidence presented" at the hearing.
On the wage issue, Mr. Wagstaff gave the following testimony:
Q: . . . [W]ere you hired full time or part time by Mr.
A: Full time.
Q: All right. Is that 40 hours a week?
Q: Sir, were you working full weeks when you were hired? Did
you work a 40-hour week?
A: Yes, if it didn't rain.
Q: All right. Now, if it rained, what happened?
A: We don't work.
Q: Would you be at work though? Would you go to work?
A: No, we was told not to.
Q: Were you called by the employer to not work?
A: No, we just know not to go when it rain.
Q: All right. Other than for bad weather, were there any
other reason that you wouldn't go to work?
Q: So it was just for bad weather during ...