Ark. Code Ann. § 11-9-518 (2020)

Research References

ALR.

Workers' Compensation: Value of Employer-Provided Room, Board, or Clothing as Factor in Determining Basis for or Calculation of Amount of Compensation Under State Workers' Compensation Statute. 48 A.L.R.6th 387.

U. Ark. Little Rock L.J.

Seventeenth Annual Survey of Arkansas Law — Workers' Compensation, 17 U. Ark. Little Rock L.J. 453.

Case Notes

In General.

This chapter does not provide benefits for an injured worker based upon his earning capacity, wages earned while working full time, or the amount the injured worker would be earning if it were not for injury, but allows benefits based on his average weekly wage. Curtis v. Ermert Funeral Home & Ins. Co. of N. Am., 4 Ark. App. 274, 630 S.W.2d 57 (1982).

Construction.

The term “compensation” as used in this section refers to money benefits paid to the injured employee for disability. Brooks v. Arkansas-Best Freight Sys., 247 Ark. 61, 444 S.W.2d 246 (1969).

Burden of Proof.

Employee has the burden of proving that he was bound by contract to work 40 hours each workweek if the work was made available. A & C Servs., Inc. v. Sowell, 44 Ark. App. 150, 870 S.W.2d 764 (1994).

Evidence.

There was no substantial evidence as to injured man's weekly pay prior to his heart attack, or that his loss decreased his earning capacity beyond the amount awarded him. Blann v. Harvill-Byrd Elec. Co., 249 Ark. 456, 459 S.W.2d 567 (1970).

Computation of benefits on weekly basis required even where deceased, due to seasonal nature of lumber industry, did not work full, regular weeks but worked whenever work was available. Gill v. Ozark Forest Prods., Inc., 255 Ark. 951, 504 S.W.2d 357 (1974); Herman Young Lumber Co. v. Koon, 30 Ark. App. 162, 785 S.W.2d 44 (1990).

Where method used by the commission to compute benefits was improper because it used less than a full time work week but there were no exceptional circumstances that would make it just and fair to both parties to take the wages earned by decedent in the preceding year, divide the amount by fifty-two, and use that figure as the average weekly wage, the commission's award would be affirmed. Farm Air Corp. v. Reader, 11 Ark. App. 72, 666 S.W.2d 717 (1984).

Award of minimum death benefits was warranted by evidence of decedent's earnings. Wright v. Tyson Foods, Inc., 28 Ark. App. 261, 773 S.W.2d 110 (1989).

Exceptional Circumstances.

There were no “exceptional circumstances” requiring application of subsection (c) of this section, because while the Arkansas Workers' Compensation Commission urged that the claimant would earn more in fifty-two weeks than his contracted amount, this was merely speculative and there was simply no evidence in the record regarding the claimant's past or prospective annual earnings with this or any other employer. The claimant was engaged in seasonal employment and at the time of his injury was earning $1020 per week for nine weeks of work, and in arriving at his weekly compensation rate the Commission stated that the claimant was contracted to earn $9180 over a nine-week period, which averaged $1020 per week, and the Commission divided the $9180 by fifty-two weeks, which equaled $176.54 per week, which was multiplied by 662/3 percent for a weekly compensation rate of $118 per week. Sierra v. Griffin Gin, 100 Ark. App. 113, 265 S.W.3d 129 (2007), rehearing denied, Sierra v. Griffen Gin, — Ark. App. —, — S.W.3d —, 2007 Ark. App. LEXIS 775 (Nov. 7, 2007), superseded, 374 Ark. 320, 287 S.W.3d 556 (2008).

Where workers' compensation claimant admitted that the claimant did not always work a full 40-hour week because the employer allowed the claimant to take unpaid leave when the claimant wanted, the Arkansas Workers' Compensation Commission properly found that exceptional circumstances existed because the claimant took unpaid time off from work for personal reasons; thus, the claimant's annual earnings were divided by 52 weeks without taking into account vacation time. Maulding v. Price's Util. Contrs., Inc., 2009 Ark. App. 776, 358 S.W.3d 915 (2009), rehearing denied, 2010 Ark. App. 51 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 222 (Apr. 22, 2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 227 (Apr. 22, 2010).

Determination of a workers' compensation claimant's average weekly wage (AWW) based on exceptional circumstances under subsection (c) of this section was supported by substantial evidence where the claimant's business expenses were deducted from his gross receipts; it was not the function of the appellate court to conclude whether there was an alternative way to compute the AWW. No Way Pulpwood, Inc. v. McCarter, 2012 Ark. App. 506 (2012).

Joint Employment.

Where the claimant sustained a compensable injury while working, but was also employed in another job, his compensation benefits were properly based on his wages earned at job in which he was injured rather than on the combined incomes of his jobs. Hart's Exxon Serv. Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ct. App. 1980).

The clear wording of the statutory definition of “wages” in § 11-9-102 makes no provision for combining wages from concurrent employments in determining benefits. Curtis v. Ermert Funeral Home & Ins. Co. of N. Am., 4 Ark. App. 274, 630 S.W.2d 57 (1982).

This section concerns itself exclusively with the determination of “average weekly wage,” and the definition of the word “wage” is controlled and supplied by § 11-9-102(8) (now (19)): it makes no provision for combining those wages with concurrent employment whether similar or otherwise in determining benefits, and the fact that the word “wage” is not redefined in the catchall proviso to this section is not controlling since that definition is supplied by § 11-9-102(8) (now (19)). Curtis v. Ermert Funeral Home & Ins. Co. of N. Am., 4 Ark. App. 274, 630 S.W.2d 57 (1982).

The proper method for determination of the average weekly wage of an employee who holds two concurrent jobs with the same employer and suffers a compensable injury while performing one of them is to combine the wages paid for the two jobs. Marianna School Dist. v. Vanderburg, 16 Ark. App. 271, 700 S.W.2d 381 (1985).

When a joint employment situation exists, both employers are liable for workers' compensation. Cook v. Recovery Corp., 50 Ark. App. 49, 900 S.W.2d 212 (1995), aff'd, 322 Ark. 707, 911 S.W.2d 581 (1995).

Employee who received two paychecks from separate employers for the same eight hour shift was appropriately limited to the statutory benefits cap based as a result of combining his wages even though his benefits, if calculated separately for each employer, would not have triggered the cap. Cook v. Recovery Corp., 322 Ark. 707, 911 S.W.2d 581 (1995).

Seasonal Employee.

Where the claimant's contract of hire provided for a 40-hour workweek whenever work was available, subdivision (a)(1) of this section required that the compensation rate be computed on the basis of a full-time workweek, despite the seasonal nature of the employment. Chapel Gardens Nursery v. Lovelady, 47 Ark. App. 114, 885 S.W.2d 915 (1994).

Temporary Employee.

An averaging is required of the earnings of an employee of a temporary employment company who at the time of injury is working on a job assignment of less than a full week. Boyd v. Metro Temporaries, 41 Ark. App. 12, 846 S.W.2d 668 (1993), aff'd, 314 Ark. 479, 863 S.W.2d 316 (Ark. 1993).

The Workers' Compensation Commission erred in finding that a temporary employee was entitled only to the statutory minimum of weekly compensation. Boyd v. Metro Temporaries, 41 Ark. App. 12, 846 S.W.2d 668 (1993), aff'd, 314 Ark. 479, 863 S.W.2d 316 (Ark. 1993).

If a temporary employee is working on a job assignment involving a full workweek at the time of injury, then only the wage rate for that particular full workweek should be used as the basis for computing compensation. Boyd v. Metro Temporaries, 41 Ark. App. 12, 846 S.W.2d 668 (1993), aff'd, 314 Ark. 479, 863 S.W.2d 316 (Ark. 1993).

Where the employer of a temporary employee anticipated assigning employee to different jobs, with different hours, and at different wages, and did so, the contract of hire in force at the time of the accident was the employer's contract with the employee, not the particular job assignment; accordingly, the injured employee was entitled to receive benefits based upon averaging the hours worked at the different jobs. Metro Temporaries v. Boyd, 314 Ark. 479, 863 S.W.2d 316 (Ark. 1993).

Time Disability Occurred.

Where claimant suffered a compensable injury, received medical treatment, returned to his regular job and continued to work until he became totally disabled, claimant is entitled to the maximum weekly benefit rate in effect at the time the disability occurred, and this rate is based on the wages being earned on the date of the accident. Montgomery v. Delta Airlines, 31 Ark. App. 203, 791 S.W.2d 716 (1990).

Weekly Wage Determination.

Average weekly pay of injured employees whose rates of pay were increased within a year prior to the injury was to be ascertained by including amount previously received. Mack Coal Co. v. Hill, 204 Ark. 407, 162 S.W.2d 906 (1942) (decision under prior law).

Periods of nonoperation of business must be counted as lost time thereby reducing the divisor to the number of weeks remaining as contrasted with 52. Mack Coal Co. v. Hill, 204 Ark. 407, 162 S.W.2d 906 (1942) (decision under prior law).

The proviso of former section that “results just and fair to both parties will thereby be obtained” applied only to those cases where reasonable men would agree that the methods of computing wages defeated the law's obvious purpose. Mack Coal Co. v. Hill, 204 Ark. 407, 162 S.W.2d 906 (1942) (decision under prior law).

Under former Workers' Compensation Act the basis for compensation was the average weekly wage, which included wages paid by the employer and subsistence allowances under the Servicemen's Readjustment Act. Wood Mercantile Co. v. Cole, 213 Ark. 68, 209 S.W.2d 290 (1948) (decision under prior law).

Where the employee is working on a piece-rate basis, bonus, holiday and vacation pay is not to be included in the computation of the average weekly wage. Tabor v. Levi Strauss & Co., 33 Ark. App. 71, 801 S.W.2d 311 (1990).

Where union contract specifically provided overtime was to be paid at one and one-half times the employee's regular rate of pay, overtime earnings were ordered to be calculated by including all earnings received for work performed in excess of eight hours in any one day and then dividing overtime earnings by the number of weeks worked by the employee not to exceed a period of 52 weeks preceding the accident, the number of weeks to be reduced by those weeks in which the employee did not work. Tabor v. Levi Strauss & Co., 33 Ark. App. 71, 801 S.W.2d 311 (1990).

Temporary employee is entitled to receive benefits based upon an averaging of the hours worked and wages received at the different jobs to which he was assigned. A & C Servs., Inc. v. Sowell, 44 Ark. App. 150, 870 S.W.2d 764 (1994).

Where the claimant was injured in 1977, but was able to continue working without loss of income until two accidents which occurred in 1996, his date of accident was 1996 and his compensation rate would be based on his 1996 earnings. Inskeep v. Emerson Elec. Co., 64 Ark. App. 101, 983 S.W.2d 132 (1998).

Employee's contract provided for the employee to teach 188 days, and stated that she would be docked $143.62 per diem for any absences during any leave-without-pay status; thus, the compensation was correctly computed on the average weekly wage earned by the employee, which was based on a 39-week year, not a 52-week year. Magnet Cove Sch. Dist. v. Barnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003).

Where employee had been promoted shortly before her accident, the Workers' Compensation Commission properly calculated her average weekly wage using employee's hourly wage at the time of the accident plus overtime for the previous year where, at the time of and after her accident, she was working extensive hours at that wage, despite occasionally performing other jobs at a lower wage. Cracker Barrel v. Lassiter, 87 Ark. App. 286, 190 S.W.3d 911 (2004).

Arkansas Workers' Compensation Commission's determination of employee's weekly compensation rate was upheld where the Commission followed a method of calculation consistent with its statutory call; the Commission's refusal to dilute employee's average weekly wage based on time that he missed due to excused leave did not produce a double recovery. Rheem Mfg. v. Bark, 97 Ark. App. 224, 245 S.W.3d 716 (2006).

Per diem payments to an employee to reimburse him for meals, lodging, and incidentals should have been included in the calculation of his average weekly wage as in subdivision (a)(1) of this section because they fell within the definition of wages under § 11-9-102(19). The per diem payments saved the employee from expending other funds to acquire those advantages, and the employee had the option to retaining any unused per diem funds, thereby increasing his income. Plane Techs v. Keno, 103 Ark. App. 121, 286 S.W.3d 774 (2008).

Arkansas Workers' Compensation Commission did not err in basing an employee's benefits on a thirty-seven-and-one-half hour workweek, which was a full workweek for the employee, because no one disputed the employee's testimony that although he was at work forty hours per week, he did not get paid for his thirty-minute lunch break, so he worked thirty-seven-and-one-half hours per week, and while there were weeks in which the employee did not work thirty-seven-and-one-half hours, he testified that that was his normal workweek; subdivision (a)(1) of this section clearly mandates that in no case shall compensation be computed on less than a full-time workweek. Johnson v. Abilities Unlimited, Inc., 2009 Ark. App. 866, 372 S.W.3d 838 (2009).

Arkansas Workers' Compensation Commission's decision to deduct business expenses from a sole proprietorship's gross receipts for the purposes of determining the average weekly wage of a self-employed claimant was just and fair under subsection (c) of this section. Vite v. Vite, 2010 Ark. App. 565, 377 S.W.3d 453 (2010).

Evidence supported the calculation of an employee's $340 average weekly wage under subsection (a) of this section because the employee testified that she made $8.50 per hour and that she was hired to work a 40-hour week. Pafford Med. Billing Servs. v. Smith, 2011 Ark. App. 180, 381 S.W.3d 921 (2011).

Arkansas Workers' Compensation Commission properly calculated his average weekly wage under this section by taking the claimant's total pay for the 51 weeks leading up to the accident and dividing it by 51. Lankford v. Crossland Constr. Co., 2011 Ark. App. 416 (2011).

Substantial evidence supported the Workers' Compensation Commission's determination of the average weekly wage of a correctional officer based on the contract rate of hire. Ark. Dep't of Corr. v. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 (2019).

Cited: Ryan v. NAPA, 266 Ark. 802, 586 S.W.2d 6 (Ct. App. 1979).