Cordeiro, 092019 MAWC, 038128-16

• Case Date: September 20, 2019
• Court: Massachusetts

Ozildo Goncalves Cordeiro, Employee Carlos Painting, Employer Workers’ Compensation Trust Fund, Insurer Proshield Exteriors, Employer Workers’ Compensation Trust Fund, Insurer Nos. 038128-16, 034148-16 Massachusetts Workers Compensation Decisions Commonwealth of Massachusetts Department of Industrial Accidents September 20, 2019           This case was heard by Administrative Judge O’Neill.           Seth J. Elin, Esq., for the employee.           Mary C. Garippo, Esq., for the Workers’ Compensation Trust Fund           Koziol, Calliotte and Long, Judges.           REVIEWING BOARD DECISION           KOZIOL, J.           The employee appeals from a hearing decision ordering the Workers’ Compensation Trust Fund (WCTF) to pay him § 34 benefits at a rate of $301.37 per week based on a concurrent average weekly wage of $502.28 for incapacity resulting from a work-related injury sustained on September 23, 2016, while working for Carlos Painting. On appeal, the employee takes issue with the judge’s average weekly wage determination. Although we affirm the judge’s average weekly wage finding regarding Carlos Painting, we vacate the judge’s determination of the employee’s average weekly wage at the Sagamore Inn Restaurant and her related calculation of the employee’s concurrent average weekly wage.           There is no dispute that the employee was injured while employed by Carlos Painting on September 23, 2016. The sole issues at hearing were average weekly wage, and the WCTF’s defense of joint employment with Proshield Exteriors, a defense that was ultimately rejected by the judge. At the outset of the hearing,^[1] the judge listed the parties’ stipulations on the record:

There are two board numbers with different employers, but the same date of injury.

The parties have stipulated that the date of injury is September 23, 2016.

The Trust Fund has paid benefits via the conference order from September 30, 2016 to date and continuing.

The accepted injury is the left lower extremity.

The parties also stipulate that the employee is disabled.

And the final stipulation is that there is concurrent employment at the Sagamore

Inn Restaurant where the employee worked approximately 15 hours per week and

his average weekly wage was $226.25.

(Tr. I, 4-5.) Both parties agreed that the judge correctly recited the stipulations and stated that they did not have anything to add. (Tr. I, 6-7.)           The judge made the following findings of fact regarding average weekly wage.

The Employee testified that he worked for Carlos as a painter and was paid in cash in addition to his job at the Sagamore Inn Restaurant. I credit the Employee’s testimony regarding the hours he worked on a weekly basis in the summer of 2016. I find the employee made approximately $700 per week while working for Carlos. However, this clearly was seasonal work as was the Sagamore Inn Restaurant job as testified to by the Employee himself.

Accordingly, a seasonal employee’s average weekly wage is determined by dividing his earnings over the previous year by fifty-two weeks, rather than by the number of weeks actually worked. The Employee testified that the restaurant was open from March until late October, so that would be thirty[-]five weeks which would amount to $7,918.75 (35 x $226.25 = $7,918.75) as the total wages earned as a dishwasher. Thus the average weekly wage that he earned working as a seasonal employee at the Sagamore Inn Restaurant was $152.28 ($7,918.75 ÷ 52 = $152.28). Moreover, the Employee testified that his work as a painter was also seasonal, six months a year, from summer until December. Accordingly, that would be twenty[-]six weeks, which would amount to $18,200.00 (26 x $700 = $18,200.00) as the total wages earned painting. Therefore, it appears that a reasonable approximation of the Employee’s average weekly wage that he earned from Carlos would be $350.00 ($18,200.00 ÷ 52 = $350). So the Employee’s concurrent average weekly wage would be $502.28 ($152.28 + $350.00 = $502.28).

(Dec. 9-10.) On appeal, the employee acknowledges that at the hearing, he raised the issue of average weekly wage (AWW) pursuant to §1(1), arguing...