More from the Delaware Supreme Court: This Time It's All About the Money

A brand new release from the Delaware Supreme Court and some new law on the wage statute, 19 Del. Code Section 2302.  Bravo to claimant attorney Yvonne Saville for her persuasive oral argument and what I suspect was a scrumptious brief.  Here is the issue: if claimant is employed for 26 weeks prior to an occupational injury but only works 16 out of those 26 weeks, what do you do with the 10 weeks where there is zero wage?  And what statute do you look at --19 Del. Code Section 2302(b),  Section 2302(b)(1), or Section 2302(b)(2)?

Employer argued that the language in Section 2302(b) refers to the worker being employed, irrespective of whether claimant worked all those weeks.  That section requires that one take the average, and include the zeros.  The claimant in this was employed by Diamond State Port Corp. for 12 years, but her work activity was dependent on when the ships came into port.  Under the employer's analysis, Section 2302(b) would be the governing statute because claimant was "employed" for the entire 26 weeks leading up to her injury.

Claimant argued that the term "work" in Section 2302(b)(1) it meant "work actually performed."   Notwithstanding her 12-year tenure with this employer, claimant only worked 16 of the 26 weeks preceding the injury.  In a 14-page decision,  the Supreme Court agreed with the claimant's argument.  And rejected the employer's argument that by allowing for an average weekly wage of $788.12 and resulting disability benefit rate, claimant would receive more total income on workers' comp the 26 weeks following her injury than she did in the 26 weeks preceding her injury, since her previous remuneration was sporadic.   Isn't life sometimes delicious?

The bottom line is that the workers' compensation statute is intended to compensate workers for lost earning capacity and not actual lost wages....so sayeth the high court.  The court acknowledged that the competing interpretations 19 Del. Code Section 2302(b) and related subsections were "both beguiling."  The statutory construction analysis makes this a keeper.  I can see this issue cropping up again with another factual variation on a theme, especially given the court's comment that this particular scenario is not one it believed that the General Assembly contemplated when the statute was crafted.

Shirley Taylor v. Diamond State Port Corp., No. 287, 2010 (Del. Supr. 2/16/11).

One thing about this decision bothers me, and perhaps I am overlooking some essential facts (or have done far too much defense work in my career).  Early on in this decision it states that the claimant did not work those 10 weeks due to two factors-- the one had to do with when the ships came into port and the other had to do with an unrelated health condition that prevented her from working in given weeks.  The weeks she did not work because she could not work-- how do they represent part of her "lost earning capacity" when she was legitimately unable to work?

Well, props again to Yvonne Saville and her partner Mike Weiss for this victory.   Bet those attorneys fees on appeal are gonna be sweeter than cheesecake.

The Queen of Cheesecake,

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