David Ham, as Personal Representative of the Estate of Timon Wayne Ham, Deceased, and Natalia Elizabeth Bicker, as Guardian Ad Litem of Eli MacPherson Ham, a minor child
v.
Osmose Utilities Services, Inc., and National Union Fire Insurance Company of Pittsburgh, PA, a subsidiary or affiliate of AIG Insurance (WC018962552)
HF No. 67, 2016/17
South Dakota Workers Compensation
November 22, 2019
N.
Dean Nasser Nasser Law Offices, PC
William C. Garry Cadwell, Sanford, Deibert & Garry, LLP
RE: HF
No. 67, 2016/17 – David Ham, as Personal Representative
of the Estate of Timon Wayne Ham, Deceased, and Natalia
Elizabeth Bicker, as Guardian Ad Litem of Eli MacPherson Ham,
a minor child v. Osmose Utilities Services, Inc., and
National Union Fire Insurance Company of Pittsburgh, PA, a
subsidiary or affiliate of AIG Insurance (WC018962552)
LETTER
DECISION AND ORDER
Michelle M. Faw, Administrative Law Judge.
Dear
Mr. Nasser and Mr. Garry,
The
Department of Labor & Regulation (Department) has
received Claimant’s Motion for Partial Summary Judgment
to Determine Weekly Benefit Rate (SDCL 62-4-3) and the
response of Employer and Insurer. All submissions have been
taken under consideration.
Claimant
has moved the Department to determine whether the average
weekly wage used to calculate the weekly compensation rate
(comp rate) in this matter is $420.17 per week or $373.87 per
week. The difference rests on whether a crewmember bonus is
included in the calculation. As a crewmember, Timon Ham
(Decedent) was eligible for a crewmember bonus in addition to
regular pay if the crew, as a whole, reached a productivity
level which had been set before the work was performed.
Decedent was on a two-man crew with Robert Holman. Claimant
argues that the crewmember bonus was part of Decedent’s
expected compensation and, therefore, can be included in his
comp rate.
Under
SDCL 62-1 -1(6), “earnings” is defined as,
“the amount of compensation for the number of hours
commonly regarded as a day’s work for the employment in
which the employee was working at the time of the...
