Richard Beavers Constr., Inc. v. Wagstaff

HEADNOTE: Richard Beavers Construction, Inc., et al. v. Dexter Wagstaff, No. 1977,
Sept. Term, 2016. Opinion by Arthur, J.

WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE

Neither statute nor regulation nor case law strictly requires the Workers’ Compensation
Commission to calculate the average weekly wage of a covered employee using an
average of the actual earnings before an accidental injury. For some newly-hired
employees, the actual earnings before the injury may not accurately represent what the
employee normally would earn from the employer. The Workers’ Compensation
Commission is not required to calculate average weekly wage using the actual earnings
from the period before an accident where: (1) the employer hired the employee for the
stated purpose of working “full time,” meaning 40 hours per week; (2) the employee
suffered a disabling injury only a short period of time after being hired; (3) the employee
worked substantially less than 40 hours per week during that period; and (4) other
circumstances call into question whether the actual hours worked during that period
accurately represented the employee’s normal working hours.

In this case, the Commission determined an employee’s average weekly wage based on
the 40-hour work week for which he had been hired, instead of using the actual hours
during the six weeks he worked prior to the accident, which were shortened by inclement
weather. Given that the parties presented only those two, imperfect options, the
Commission’s determination was not incorrect as a matter of law. Under the
circumstances, it was not unreasonable to conclude that multiplying the hourly rate by 40
hours would result in the better approximation of what the employee normally would
earn from the employer under the contract that was in existence at the time of the injury.
Circuit Court for Talbot County
Case No. 20-C-14-008769
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1977

September Term, 2016

______________________________________

RICHARD BEAVERS CONSTRUCTION,
INC., et al.

v.

DEXTER WAGSTAFF

______________________________________

Meredith,
Berger,
Arthur,

JJ.*
______________________________________

Opinion by Arthur, J.
______________________________________

Filed: March 1, 2018

* Judge Christopher B. Kehoe did not
participate in the Court’s decision to designate
this opinion for publication pursuant to Md.
Rule 8-605.1
Under 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 the accident.

This 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.

The 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.

The 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.

FACTUAL AND PROCEDURAL BACKGROUND

The 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 question.

In the 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).

A. Mr. Wagstaff’s Employment with Richard Beavers Construction, Inc.

The 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.

Mr. 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, 40-

hour 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

2
$317.41 per week.1 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.

B. The Accidental Personal Injury and Resulting Disability

On the 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.

The following summary of his injuries was later presented to the Commission:

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.

An 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.”

Upon 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

1
Some of RCBI’s documents are difficult to read because they have poor image
quality and small type size. Perhaps for that reason, RBCI has at different times claimed
that Mr. Wagstaff’s average earnings were either $317.38 or $317.44. As best as we can
decipher, the actual figure appears to be $317.41, which results from total earnings of
$1,904.48, from working 100.5 hours at $18.95 per hour.

3
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.

Although 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.

C. Proceedings before the Workers’ Compensation Commission

Three 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.

In 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.

On May 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

4
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 Commission.”

On 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. Beavers?

A: Full time.

Q: All right. Is that 40 hours a week?

A: Yes.

* * *

Q: Sir, were you working full weeks when you were hired? Did you
work a 40-hour week?

5
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?

A: No.

Q: So it was just for bad weather during that time.

A: Yes, because we was outside on the roof.

Q: All right. And I assume, sir, based on the pay stubs . . . that the
employer and insurer showed us, there were a lot of weeks where you
didn’t work 40 hours. Was that all because of weather?

A: Yes.

The only other witness on the wage issue was Mr. Richard Beavers, the owner of

RBCI. Mr. Beavers assured the Commission that the records of Mr. Wagstaff’s hours

were accurate because he had been hired for “a government project” for which the payroll

needed to be “certified every week” by RBCI’s bookkeeper. Although he admitted that

he did not personally hire Mr. Wagstaff, Mr. Beavers recalled that he did not “promise”

that Mr. Wagstaff could work “any exact number of hours[.]” Mr. Beavers testified that

he indicated to Mr. Wagstaff “that he could work when work was available[.]” When

asked whether he was “aware that [Mr. Wagstaff] was hired on a full-time basis,” Mr.

6
Beavers answered: “I would assume so.”

Mr. Beavers also testified that, in the week of the accident, he paid what he called

“a full check” to Mr. Wagstaff in the amount of $758.00, “based on a 40-hour week.”

Mr. Beavers explained that, “at some point” after the accident, RBCI “made the transition

from paying him [for] 40 hours to paying him only a 500-dollar check,” which RBCI then

continued to do for several months. During cross-examination, Mr. Beavers admitted

that he decided to make the supplemental payments of $500 per week because he knew

that Mr. Wagstaff was receiving compensation based on “a far lower figure” than the

$758.00 that Mr. Wagstaff “would have made assuming he was working five days a week

full time.”

After taking evidence, the Commission declined to hear arguments on the average

weekly wage issue. On the same day as the hearing, the Commission issued an order

stating that Mr. Wagstaff’s “true average weekly wage is $758.00” and ordering that “the

temporary total disability rate shall be adjusted accordingly[.]” Under the statutory

formula, therefore, Mr. Wagstaff was entitled to receive $505.33 per week during the

period when he was temporarily totally disabled. See LE § 9-621. The order further

stated that RBCI and its insurer were entitled to a credit for the gratuitous payments that

RBCI had made to Mr. Wagstaff after the injury.

D. Judicial Review in the Circuit Court

RBCI and Selective Way filed a timely petition in the Circuit Court for Talbot

County, seeking review of the Commission’s decision.

During discovery, Mr. Wagstaff gave deposition testimony that was consistent

7
with, but more detailed than, his testimony to the Commission. He reiterated that RBCI

had hired him “to work full time.” He recalled that, although he did not sign an

employment contract, he filled out an application form on his first day with the

understanding that he “was applying for a full-time job.” He explained that his position

required him to be ready to work every weekday from 6:00 am until around 3:00 pm.2

He admitted that, at the time he was hired, he understood that he would not receive pay

when he could not work because of weather. He further admitted that this arrangement

was “typical in the position of a field operator . . . working outdoors[.]”

Mr. Wagstaff recalled that, soon after he started working for RBCI, rain and snow

prevented him from working full 40-hour weeks. On some mornings, he would receive

instructions not to report for work. If it rained unexpectedly after the crew arrived, he

would receive pay for “two hours just for being there.” He maintained, as he did in his

testimony to the Commission, that bad weather was the only reason that he ever missed a

day or partial day of work.3

Based on this deposition testimony and the record of the proceedings before the

Commission, RBCI and its insurer moved for summary judgment. They contended that

the calculation of Mr. Wagstaff’s average weekly wage depended entirely on a question

of law. They argued that his average weekly wage “should be calculated based on the

2
Evidently, this nine-hour schedule included an unpaid lunch hour.
3
Mr. Wagstaff worked only eight hours during his first, one-week pay period. His
testimony was somewhat unclear about the exact date of hiring. Although he believed
that he had been hired on February 15, a Friday, he also believed that he had been hired
on the final day of his first pay period, which ended on Wednesday, February 20.

8
actual hours worked by [him] when work was available[,]” and that the days he missed

because of “inclement weather should be considered as part of the wage calculation as a

matter of law[.]” On that basis, they contended that the “correct” average weekly wage

was $317.44.

In response, Mr. Wagstaff argued that the $317.44 figure did not “represent a fair

and accurate measure of his earnings” because it was based on “a limited number of

weather shortened weeks[.]” In purported reliance on LE § 9-602(a)(3), he also argued

that the statute permitted the Commission to account for the likelihood that his wages

“could be expected to increase under normal circumstances[.]” The circuit court denied

the summary judgment motion in a simple order, without announcing its reasons.

Shortly before the scheduled trial date, RBCI and its insurer withdrew their jury

trial request. All parties filed a joint motion, stating that they “agree[d] that there [was]

no genuine dispute of material fact” and that they “intend[ed] to proceed with oral

arguments addressing the legal issue” in the Commission’s order. Soon thereafter, RBCI

and its insurer submitted a memorandum of law, which essentially reiterated the

arguments that they had advanced in support of their summary judgment motion.4

The circuit court heard oral arguments on October 19, 2016. A few weeks later,

on November 2, 2016, the circuit court issued an order confirming the Commission’s

decision. In a written opinion, the court stated that the parties had presented the sole

4
The transcript indicates that Mr. Wagstaff also submitted a memorandum of law
to the circuit court during the hearing. That document does not appear in the record on
the court’s electronic filing system.

9
legal issue of whether the average weekly wage should be “based on the average of the

wages that Mr. Wagstaff actually received” or whether it could be based on “what RBCI

had agreed to pay him.” The court concluded: “He had been promised $758.00 per week,

and it is reasonable to conclude that this figure represents an expected increase in salary

and, therefore, the Court finds that $758.00 is Mr. Wagstaff’s average weekly wage.”

After the entry of judgment, RBCI and Selective Way noted this timely appeal.

DISCUSSION

In this appeal, the employer (RBCI) and its insurer (Selective Way) raise the

single issue of whether the Workers’ Compensation Commission erred when it

determined that Mr. Wagstaff’s average weekly wage was $758.00.5 RBCI and its

insurer contend that the Commission’s decision, as well as the circuit court judgment

confirming it, are “incorrect as a matter of law.” They argue that the Commission was

required to calculate average weekly wage by adding up gross earnings from the six

weeks before the accident and then dividing that total by six. On that basis, they seek

reversal of the Commission’s decision and an order finding that the “correct” average

weekly wage is $317.44.

Because the appellants have challenged a decision of the Commission, our

analysis begins with the standard set forth in the Workers’ Compensation Act. In a case

involving accidental personal injury, the court’s task is to “determine whether the

5
The appellants framed the issue in this way: “Whether the Appellee’s average
weekly wage for determination of workers’ compensation benefits should be calculated
based upon the Appellee’s actual wages earned during the period worked prior to the
accidental injury as opposed to hypothetical and speculative future wages and hours.”

10
Commission: (1) justly considered all of the facts about the accidental personal injury

. . . ; (2) exceeded the powers granted to it . . . ; or (3) misconstrued the law and facts

applicable in the case decided.” LE § 9-745(c). The court must confirm the decision

unless it determines that the Commission exceeded its authority or misconstrued the law

or facts. Uninsured Empl’rs’ Fund v. Pennel, 133 Md. App. 279, 288-89 (2000).

A decision of the Commission “is presumed to be prima facie correct,” and “the

party challenging the decision has the burden of proof.” LE § 9-745(b)(1)-(2). This

presumption of correctness, however, does not extend to legal determinations, which are

subject to independent review by the courts. Montgomery County v. Deibler, 423 Md.

54, 60 (2011). The courts are “under no constraint” to uphold a decision if it is

“premised solely upon an erroneous conclusion of law.” Pro-Football, Inc. v. McCants,

428 Md. 270, 283 (2012) (citation and quotation marks omitted).

RBCI and its insurer assert that “this matter presents a question concerning the

method of calculating average weekly wage,” which should be reviewed without any

deference. Mr. Wagstaff agrees that the central issue in this case is one of law.

Likewise, the circuit court expressly treated the issue as a purely legal one.

In general, where the parties to a judicial review proceeding “agree on the facts,

leaving the interpretation of [a statute] as the sole legal issue[,]” the appropriate standard

of review is de novo. Johnson v. Mayor & City Council of Balt., 430 Md. 368, 376

(2013). In cases where parties have presented competing methods for determining an

employee’s average weekly wage, the Court of Appeals has stated that “the issue

essentially is a question of law” (Long v. Injured Workers’ Ins. Fund, 448 Md. 253, 265

11
(2016)), and that “treating the issue . . . as one of law is consistent with th[e] Court’s prior

opinions.” Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37, 48 (1993).

According to RBCI and its insurer, this case turns on a matter of statutory and

regulatory interpretation. They contend that, as a matter of law, an employee’s average

weekly wage “should be calculated using the wages actually earned during the period

worked prior to the accidental injury.” They argue that this conclusion follows from a

“plain reading” of two provisions: LE § 9-602(a)(1), which governs the general

computation of average weekly wage; and COMAR 14.09.03.06, which sets forth the

procedure for the Commission to determine average weekly wage.

When we are called upon to interpret any statute, we first examine the ordinary

meaning of the enacted language, reading the statute as a whole to avoid an interpretation

that might nullify another part of the statute. Reger v. Washington Cnty. Bd. of Educ.,

455 Md. 68, 96 (2017). If the statutory language is sufficiently clear, the interpreter

normally will have no need to look beyond the statute itself. Id. These basic principles

of construction guide the interpretation of regulations as well as statutes. Hranicka v.

Chesapeake Surgical, Ltd., 443 Md. 289, 298 (2015).

“When interpreting the Workers’ Compensation Act, ‘additional principles of

interpretation enter the equation.’” Hollingsworth v. Severstal Sparrows Point, LLC, 448

Md. 648, 655 (2016) (quoting Montgomery County v. Deibler, 423 Md. at 61). The Act

expressly states that it should not be “strictly construed” (LE § 9-102(b)), but instead that

it should be “construed to carry out its general purpose.” LE § 9-102(a). The purpose, as

stated in the preamble to the original version of the Act, “was to equitably distribute the

12
burden of workplace accidents among the State, taxpayers, employees, and employers.”

Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 362 (2010) (citing 1914 Md. Laws ch.

800). Elaborating further, the Court of Appeals has explained: “The purpose of the Act is

‘to protect workers and their families from hardships inflicted by work-related injuries by

providing workers with compensation for loss of earning capacity resulting from

accidental injury arising out of and in the course of employment.’” Hollingsworth v.

Severstal Sparrows Point, LLC, 448 Md. at 655 (quoting Elms v. Renewal by Andersen,

439 Md. 381, 399 (2014)).

The Court of Appeals has “repeatedly emphasized” that the Act is “remedial” in

nature and “that it ‘should be construed as liberally in favor of the injured employees as

its provisions will permit in order to effectuate its benevolent purposes.’” Montgomery

County v. Robinson, 435 Md. 62, 82-83 (2013) (quoting Howard Cnty. Ass’n for

Retarded Citizens, Inc. v. Walls, 288 Md. 526, 530 (1980)). Accordingly, where the

meaning of the Act is unclear, the interpreter should “‘resolve any uncertainty in favor of

the claimant.’” Johnson v. Mayor & City Council of Balt., 430 Md. at 377-78 (quoting

Breitenbach v. N.B. Handy Co., 366 Md. 467, 473 (2001)). On the other hand, a faithful

interpreter must not ignore the statute’s plain meaning or create ambiguity where none

fairly exists, simply to allow an injured worker to prevail. Reger v. Washington Cnty. Bd.

of Educ., 455 Md. at 96-97.

The dispute here centers on the term “average weekly wage.” Although the

current version of the Act includes no formal definition of that term, LE § 9-602(a)

“describes the general computation” (Long v. Injured Workers’ Ins. Fund, 448 Md. at

13
266) of average weekly wage by “list[ing] the elements to be considered as within” it.

Gross v. Sessinghause & Ostergaard, Inc., 331 Md. at 39. It provides, in relevant part:

(a)(1) Except as otherwise provided in this section, the average weekly
wage of a covered employee shall be computed by determining the average
of the weekly wages of the covered employee:

(i) when the covered employee is working full time; and

(ii) at the time of:

1. the accidental personal injury[.]

LE § 9-602(a)(1).

RBCI and its insurer assert that there is “no uncertainty in the law” as it applies to

Mr. Wagstaff’s average weekly wage. They focus on the words: “the average of the

weekly wages of the covered employee . . . when the covered employee is working full

time; and . . . at the time of . . . the accidental injury[.]” They argue that, it is “consistent”

with a “plain reading” of these words to require the Commission to determine average

weekly wage based solely on the actual earnings before the accident.

In what they characterize as nothing more than a “plain reading,” RBCI and its

insurer offer a few paraphrases of this provision. In one such attempt, from their opening

brief, they say that the statute provides that average weekly wage must be calculated

“based upon the wages earned while the Claimant is working and at the time of the

accidental injury.” (Emphasis added.) This paraphrase subtly shifts the meaning of the

text by diluting the key phrase “working full time.” Those words should not be

overlooked. See Merrill v. State Military Dep’t, 152 Md. 474, 479 (1927) (noting, in

dispute over the proper measure of average weekly wage, that the court should “keep[] in

14
mind . . . that [it] shall be taken to mean the average weekly wage earned by an employee

when working on ‘full time’”).

In another such attempt, from their reply brief, RBCI and its insurer assert that

under a “plain reading” average weekly wage must be “based upon the actual weeks

worked prior to the date of accident.” (Emphasis added.) If in fact the statute said that

average weekly wage must be computed using earnings from the “actual weeks worked

prior” to the accident, then we might be persuaded by their interpretation. But the statute

does not use those words, or other similar words that might have expressed that same

meaning. Instead, it uses a more unusual wording: “the average of the weekly wages of

the covered employee . . . when the covered employee is working full time[.]” The

meaning of that phrase is not immediately clear for an employee such as Mr. Wagstaff,

who was hired for the purpose of working full time, but who was not actually working

those full-time hours before the accident. See Stevenson v. Hill, 171 Md. 572, 576 (1937)

(observing that the term “‘full time’ is an expression of questionable application in some

circumstances”). In our judgment, these attempts by RBCI and its insurer to paraphrase

LE § 9-602(a)(1) simply demonstrate that the meaning itself is not apparent from the

letter of the statute.6

Longstanding precedent indicates that the Act’s concept of “average weekly

6
One contemporary author has commented that the meaning of the phrase
“working full time” is unclear for employees who, for various reasons, are working less
than full-time hours at the time of accident. See 1 Clifford B. Sobin, Maryland Workers’
Compensation § 11:2, at n.9 (2017) (commenting on the “poor wording” of LE § 9-
602(a)(1)(i) and describing the provision as “confusing”).

15
wage” has always suggested, to some extent, a projection of what an employee would

have gone on to earn if not for the accidental injury. In Campbell Coal Co. v. Stuby, 159

Md. 280 (1930), the Court of Appeals considered a dispute over how to instruct a jury

about average weekly wage. The employer had asked for an instruction that “‘the

average weekly wage of the deceased employee was the total amount the said employee

earned over such period of time immediately preceding his fatal injury as the jury may

find it necessary to consider in order to arrive at a fair average divided by the number of

weeks embraced by such time.’” Id. at 288 (emphasis in original). Instead, the trial court

instructed the jury “that ‘the average weekly wage of the deceased employee was the total

amount the said employee might have earned working all the time the mines in the region

were generally employed over such period of time, immediately preceding his fatal

injury, as the jury may find it necessary to consider in order to arrive at a fair average,

divided by the number of weeks embraced by such time[.]’” Id. at 287 (emphasis in

original). The Court of Appeals reasoned that the trial court’s instruction was “in

conformity with the statute,” which at that time stated “that average weekly wage shall be

taken to mean ‘the average weekly wage earned by an employee when working on full

time[.]’” Id. at 288.

Citing Campbell Coal and other cases, the Court of Appeals later wrote that

“average weekly wage is based on what the employee would earn from the employer

where working under a specific contract of hire existing between the employer and

employee.” Crowner v. Balt. United Butchers Ass’n, 226 Md. 606, 610 (1961) (emphasis

16
added).7 The Court’s use of conditional language (i.e., what the employee “might have

earned” or what the employee “would earn”) is consistent with the Act’s overall purpose

of compensating injured workers for loss of earning capacity.

For his part, Mr. Wagstaff also makes his own attempt at what he calls a “plain

reading” of part of the statute. He purports to rely on LE § 9-602(a)(3), which provides:

(3) If a covered employee establishes that, because of the age and
experience of the covered employee at the time of the accidental personal
injury . . . , the wages of the covered employee could be expected to
increase under normal circumstances, the expected increase may be taken
into account when computing the average weekly wage of the covered
employee under paragraph (1) of this subsection.

LE § 9-602(a)(3).

Although Mr. Wagstaff did not cite this provision to the Commission, he argues

that the Commission “properly relied on” it in finding his average weekly wage to be

$758.00. He theorizes that the Commission accounted for an “expected increase in

salary, with more favorable working conditions when compared to lower weekly wages

[that he had] earned while working weather shortened weeks just prior to his accident.”

The obvious flaw in Mr. Wagstaff’s argument is that an “expected increase”

because of weather conditions that have no relation to an employee’s age or experience

cannot be said to be an increase “because of the age and experience of the covered

employee[.]” LE § 9-602(a)(3). Even affording the Act a liberal construction, we cannot

simply ignore that qualifying phrase. In other jurisdictions, provisions similar to LE § 9-

7
This Court has said that “[t]he statutory definition of ‘average weekly wage’
when Crowner was decided was substantively the same as LE section 9-602(a)[.]”
Thomas v. Giant Food, LLC, 174 Md. App. 103, 110 (2007).

17
602(a)(3) have been interpreted to apply to employees such as “apprentices, student

nurses, and recent college graduates.” Jung v. Southland Corp., 114 Md. App. 547, 549

(1997) (citations omitted), aff’d, 351 Md. 165 (1998). For our purposes, LE § 9-

602(a)(3) at most offers some additional confirmation that average weekly wage should

represent what the employee “would earn” under the employment contract existing at that

time of the injury (Crowner v. Balt. United Butchers Ass’n, 226 Md. at 610), which is not

necessarily identical to what the employee had “earned” immediately prior to the injury.

See Campbell Coal Co. v. Stuby, 159 Md. at 287-88.

RBCI and its insurer point out that the Act should not be construed to permit an

employee to “receive more compensation by being injured than by working.” Long v.

Injured Workers’ Ins. Fund, 448 Md. at 292. In other words, an employee should not

“receive a windfall for being injured.” Id. at 298. They note that “an average weekly

wage of $758.00 results in a weekly compensation rate of $506.00[,]” and that Mr.

Wagstaff “never earned more than $454.80 in a week while working for [RBCI].” They

assert that the Commission’s award “makes it more profitable for [Mr. Wagstaff] to be

injured than to be working.”

This argument depends on the premise that the six weeks in February and March,

in which Mr. Wagstaff never worked more than three days per week, was truly

representative of his normal working hours. That premise is dubious. See 5 Arthur

Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 93.02[1], at 93-28

(2013) (observing that “lack of a full-time employment record” is “[t]he most familiar” of

the “various circumstances which would make [a] claimant’s actual earnings during a

18
particular past period an unreliable measure of his or her future earnings capacity”). If

the six-week sample significantly understated his normal working hours, then using it to

determine his benefits would result in an unwarranted windfall for the employer and

insurer.

Little imagination is needed to think of scenarios in which an inflexible

requirement tying an injured employee’s compensation to pre-accident earnings would

subvert the goal of compensating employees for lost earning capacity. Suppose that,

immediately after an employee’s first day of full-time work, an event such as a natural or

manmade disaster shut down the place of employment for a few weeks, in which the new

employee received no pay; then, immediately upon the employee’s return, the employee

became disabled in a workplace injury. In such a scenario, an average of actual earnings

during the weeks before the injury would not accurately represent what the employee

normally would earn from that employer under the contract that was existing at the time

of the injury. This unfortunate employee would certainly suffer financial hardship if the

employee’s compensation were strictly computed by dividing the actual gross earnings

by the number of weeks since being hired. In many situations involving recently-hired

employees, the rule proposed by RBCI and its insurer would violate the principle that the

Act should be construed “to afford substantial, and not merely nominal, relief[.]” Merrill

v. State Military Dep’t, 152 Md. at 478.

Looking beyond LE § 9-602, the parties offer competing interpretations of one of

the Commission’s regulations. The Workers’ Compensation Act broadly empowers the

Commission to “adopt regulations to carry out” the Act. LE § 9-309. More specifically,

19
it directs the Commission to “adopt reasonable and proper regulations to govern the

procedures of the Commission, which shall be as simple and brief as reasonably possible”

(LE § 9-701(1)), and to “regulate and provide for the nature and extent of evidence and

proof and for the method of taking and providing evidence and proof to establish a right

to compensation[.]” LE § 9-701(4). Under this authority, the Commission promulgated

COMAR 14.09.03.06, which establishes the procedure for determining an employee’s

average weekly wage.

Sections (A), (B), and (C) of this regulation outline a three-stage process. In the

first stage, the Commission makes a preliminary determination based on the amount

reported by the employee. COMAR 14.09.03.06(A) provides:

A. Preliminary Determination. For the purpose of making an initial
award of compensation before a hearing in the matter, the Commission
shall determine the claimant’s average weekly wage from gross wages,
including overtime, reported by the claimant on the employee’s claim form.

In the next stage, the employer or its insurer must promptly produce

documentation of the actual wages earned by the employee in a 14-week period

preceding the accident. COMAR 14.09.03.06(B) states:

B. Filing of Wage Statement. As soon as practicable, the
employer/insurer shall file a wage statement containing the following
information:

(1) The average wage earned by the claimant during the 14 weeks
before the accident, excluding the time between the end of the last
pay period and the date of injury, provided that periods of
involuntary layoff or involuntary authorized absences are not
included in the 14 weeks;

(2) Those weeks the claimant actually worked during the 14 weeks
before the accident;

20
(3) Vacation wages paid; and

(4) Those items set forth in Labor and Employment Article, § 9-
602(a)(2), Annotated Code of Maryland.[8]

The third stage is the hearing stage, in which the parties may present other

evidence so that the Commission may make an accurate determination:

C. Determination at First Hearing.

(1) Calculation of the average weekly wage shall be adjudicated and
determined at the first hearing before the Commission.

(2) All parties shall be prepared to produce evidence from which the
Commission can determine an accurate average weekly wage at the
first hearing.

COMAR 14.09.03.06(C)(1)-(2).

The procedural history of this case illustrates this three-stage process. Mr.

Wagstaff initially reported weekly wages of $758.00 on his claim form; RBCI filed

documentation indicating that he had actually earned around $317.44 per week during six

weeks before the accident; and, based on the evidence presented at the first hearing, the

Commission determined that his average weekly wage was $758.00.

Focusing on section (B), RBCI and its insurer assert that the regulation “require[s]

the average weekly wage to be calculated by determining the average wages earned

during the 14 weeks prior to the accidental injury.” In fact, the actual text of section (B)

says only that “the employer/insurer shall file a wage statement” containing certain

8
LE § 9-602(a)(2) states that “tips” and “the reasonable value of housing, lodging,
meals, rent, and other similar advantages” are included in the calculation.

21
information. It does not purport to require the Commission to use any particular method

of calculation. By implication, it suggests that, “[u]sually,” the Commission will

calculate average weekly wage “by adding gross wages that the employee earned in the

fourteen weeks preceding the accidental personal injury and dividing the sum by

fourteen.” Long v. Injured Workers’ Ins. Fund, 448 Md. at 267 (emphasis added).

A reading of the entire regulation, however, shows that the 14-week wage

statement is not the only evidence that the Commission may consider. If the wage

statement were conclusive, then there would be no need for a hearing at which “[a]ll

parties” must be prepared to “produce evidence from which the Commission can

determine an accurate average weekly wage[.]” COMAR 14.09.03.06(C)(2). Fairly

read, this regulation permits parties to offer other evidence to contest whether the 14-

week wage statement accurately represents what the employee would earn from the

employer under the contract in existence at the time of the injury.9

Our reading of the regulation conforms with the analysis of the leading case on the

subject: Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37 (1993). The regulation in

effect at that time “stat[ed] that, ‘unless otherwise ordered after the hearing,

compensation payments shall be based on . . . the average wage earned by the employee

during the thirteen weeks before the accident.’” Id. at 40 (quoting former version of

COMAR 14.09.01.05(B)).

9
Accord Theodore B. Cornblatt, et al., Maryland Workers’ Compensation Manual
48 (18th ed. 2017) (recommending that counsel for claimants “must investigate to see if
the earnings during the 14-week period are not typical of the claimant’s true earnings
background” and should not “merely rely on the employer/insurer’s figure”).

22
The employee in that case, Mr. Gross, had worked at a construction firm for two

years before being injured. Id. at 41. On his claim form, Mr. Gross reported that his

wages were $11.00 per hour, from which the Commission initially determined that his

average weekly wage was $440.00. Id. The employer submitted a wage statement

showing that Mr. Gross earned an average of $282.20 during the 13 weeks prior to the

accident. Id. At a hearing, Mr. Gross presented an income tax form showing that he had

earned approximately $400.00 per week throughout the 52 weeks preceding the accident.

Id. at 42. He argued that, “given the nature of the heavy construction industry in which

[he] worked, the yearly earnings better represented his earning capacity.” Id. The

Commission agreed with him and found that his average weekly wage was $400.00. Id.

The Court of Appeals rejected the employer’s argument that the statute and

regulation required the Commission to use the earnings from the 13 weeks before the

accident to determine average weekly wage. The Court noted that the statute itself “does

not specify a particular time period to be used in calculating a worker’s average weekly

wage.” Id. at 39. Thus, “prior to the promulgation of a regulation specifying a time

period for calculating [an] injured worker’s average weekly wage, the Commission was

free to choose an appropriate period on a case-by-case basis.” Id. at 50. The Court

concluded:

The Commission’s [regulation] appears to be designed to address the
vast majority of cases in which there is no hearing. In such cases, it
provides a definite rule in lieu of a case-by-case basis. The regulation also
supplies a standard in those cases in which there is a hearing but where no
question arises concerning the appropriate time period or where the
Commission decides that it should not depart from the thirteen-week rule.
Nevertheless, . . . in a case where there is a hearing, the regulation does not

23
purport to restrict the Commission in any manner from utilizing a different
time period if the Commission deems it appropriate to do so.

Id.

As subsequently amended, the regulation is even more explicit in permitting the

Commission to consider evidence other than the wage statement. The regulation no

longer states that, “unless otherwise ordered after the hearing,” payments “shall be based

on” wages earned during the 13 weeks prior to the accident. It now states that “the

employer/insurer shall file a wage statement containing” information about earnings from

the 14 weeks prior to the accident (COMAR 14.09.03.06(B)), and it directs that the

ultimate determination should be based on the evidence presented at the hearing. See

COMAR 14.09.03.06(C). The wage statement still serves as the basis for determining

average weekly wage in “the vast majority of cases in which there is no hearing” and in

“cases in which there is a hearing but where no question arises concerning the appropriate

time period or where the Commission decides that it should not depart” from the usual

standard. Gross v. Sessinghause & Ostergaard, Inc., 331 Md. at 50. Yet it remains true

that, “in a case where there is a hearing, the regulation does not purport to restrict the

Commission in any manner from utilizing a different time period if the Commission

deems it appropriate to do so.” Id.

As part of their argument, RBCI and its insurer suggest that this Court should

“endorse a uniform and predictable basis for calculating average weekly wage” to further

two “policy considerations.” First, they assert that basing average weekly wage solely on

actual hours worked and wages earned immediately before the accident would “ensure[]

24
that an employer, its insurer, and the Commission can calculate benefits owed to a

claimant absent a hearing and disburse benefits as quickly as possible.” (Emphasis

added.) On a related note, they suggest that such a rule would promote “[p]redictability

and administrative ease,” even though it would do so “at the price of some flexibility in

unique or unusual circumstances.” Jung v. Southland Corp., 114 Md. App. at 551

(citation and quotation marks omitted).

In our assessment, the Commission has already used its rule-making authority to

adopt procedures that it believes will achieve the appropriate balance. By requiring the

employer or insurer to promptly file a 14-week wage statement, COMAR 14.09.03.06(B)

promotes efficiency in the majority of cases in which average weekly wage is undisputed.

In the minority of cases where a party contends that those earnings do not accurately

reflect what the employee would earn, COMAR 14.09.03.06(C) allows the parties to

present other evidence at a hearing. If the Commission holds a hearing, it can exercise its

traditional flexibility to decide the most appropriate basis for its calculation according to

the unique facts of each case. See Gross v. Sessinghause & Ostergaard, Inc., 331 Md. at

50.

Like his adversaries, Mr. Wagstaff also proceeds, in part, on the assumption that

COMAR 14.09.03.06 “requires” the Commission to calculate average weekly wage

based on the 14-week wage statement. He nevertheless emphasizes the language

directing the employer or insurer to exclude “periods of involuntary layoff or involuntary

authorized absences” (COMAR 14.09.03.06(B)(1)) from the 14-week earnings history.

He charges that his employer, in fact, failed to comply with the regulation, because it

25
submitted information that included the days when he could not work because of

inclement weather. Under his interpretation, the $758.00 figure does represent an

average of actual earnings: an average that excludes all weather-shortened days. RBCI

and its insurer encourage us to adopt a much narrower reading, in which the days when

an employee does not work because of weather should not be considered “periods of . . .

involuntary authorized absences.”

We need not decide which interpretation of COMAR 14.09.03.06(B) is correct

because, as discussed previously, that section does not control the ultimate determination

in cases where the Commission holds a hearing. The controlling provision is COMAR

14.09.03.06(C), which envisions that the Commission will determine average weekly

wage based on the evidence presented at the first hearing.10

The remaining question is whether, from the evidence that was actually presented

at that hearing, the Commission was required to find that Mr. Wagstaff’s average weekly

wage was $317.44. In this regard, RBCI and its insurer assert that “liability under the . . .

Act cannot be premised on speculation and conjecture but must be solely based on the

facts contained in the record.’” Jung v. Southland Corp., 114 Md. App. at 549 (quoting

Deichmiller v. Indus. Comm’n of Illinois, 497 N.E.2d 425, 457 (Ill. App. Ct. 1986)).

10
The clause directing employers and insurers to exclude “periods of involuntary
layoff or involuntary authorized absences” from the wage statement is still notable for
another reason. By rejecting data from those periods, the Commission implicitly has
recognized that a raw average of actual earnings is not the best measure of earning
capacity if that average accounts for time in which an employee involuntarily lost the
opportunity to work. It would be difficult to reconcile this feature of the regulation with
the strict interpretation of the statute offered by the appellants.

26
They argue that the Commission improperly relied on Mr. Wagstaff’s “speculative future

earnings potential,” using a “hypothetical 40-hour workweek,” instead of “actual facts” in

evidence.

We disagree with the assertion that the Commission made a “purely hypothetical

and speculative” determination when it selected the 40-hour week as the basis for its

calculation. During the hearing, the Commission heard undisputed testimony that RBCI

had hired Mr. Wagstaff to work on a full-time basis, meaning 40 hours per week. At the

rate of $18.95 per hour, he could expect to earn $758.00 over a full week, unless the

week was shortened by inclement weather. His testimony was sufficient to support the

conclusion that $758.00 was a reasonable approximation of what he would normally earn

in his position. We agree with the appellants that there was no “definitive evidence” and

no “guarantee” that he would have gone on to work 40-hour weeks if not for his injury.

But the Commission may draw reasonable inferences even if those inferences fall short of

a certainty or near-certainty. See W.M. Schlosser Co. v. Uninsured Emp’rs’ Fund, 414

Md. 195, 205 (2010) (explaining that the Commission’s conclusions are adequately

supported as long as “a reasoning mind reasonably could have reached the factual

conclusion” reached by the Commission) (citations and quotation marks omitted); see

also COMAR 14.09.03.09(C)(4) (providing that the hearing commissioner may “give

probative effect” to “evidence that reasonable and prudent individuals commonly accept

in the conduct of their affairs”).11

11
Mr. Wagstaff suggests that the Commission also could have considered the
voluntary payments that RBCI made after the accident (weekly checks of $758.00, which

27
It was also undisputed that Mr. Wagstaff had actually earned about $317.44 per

week because he worked only 16.75 hours per week during the six weeks after he was

hired. Yet the Commission had reason to conclude that this six-week history did not

accurately reflect what he would expect to earn in his position with RBCI. The sample

size was exceptionally small, covering less than half of the “fairly deep accounting of the

employment history of the employee” that the Commission normally considers

(Montgomery County v. Deibler, 423 Md. at 73), and a small fraction of the 52-week

history that the Commission often considers. See Gross v. Sessinghause & Ostergaard,

Inc., 331 Md. at 49-50. The Commission could reasonably conclude that the weather

during that period (rain or snow on about three out of every five work days) was

abnormal. Given that the parties presented the Commission with only two, imperfect

options, it was not unreasonable to conclude that $758.00 was the better approximation of

what Mr. Wagstaff would have earned if not for the injury.

As a secondary line of argument, RBCI and its insurer search for support from

case law interpreting the term “average weekly wage.” Although they recognize that no

Maryland case “directly address[es] how to calculate average weekly wages in situations

such as this one[,]” they assert that some opinions are “instructive.” For the most part,

were later reduced to $500.00) as evidence of his average weekly wage at the time of the
accident. We disagree. Under the statute, average weekly wage is “fixed . . . at the time
of the accidental personal injury” and “ordinarily can be determined only by reference to
when the applicable accidental personal injury occurred.” Jung v. Southland Corp., 351
Md. 165, 171-72 (1998). Moreover, it would be unfair to employers and unwise as a
policy matter to penalize an employer for its generosity to an injured employee after an
accident.

28
the issues in those cases are far removed from the issues implicated in the calculation of

Mr. Wagstaff’s average weekly wage.12

Only one case cited by the appellants comes close to addressing the issues

implicated here: Stevenson v. Hill, 171 Md. 572 (1937). That case does not concern the

specific problem of a limited sample size, but it does generally address how to determine

average weekly wage when the employee has a discontinuous work schedule.

The employee in that case sustained a fatal injury in 1933 while working as an

inspector for a coal company. Id. at 573. “Because of the general economic depression,

and especially [the depression] in coal mining,” the mine had operated infrequently in the

months before the accident. Id. at 574. The employer’s mines were open for an average

of 203 days during the year before the accident, and it was undisputed that this time of

operation was no shorter than that of other mines in the region. Id. at 574-75. The

12
As discussed previously, Gross v. Sessinghause & Ostergaard, Inc., 331 Md. at
50, upheld a determination of average weekly wage, after a hearing, based on a 52-week
earnings history rather than a 13-week wage statement. The Court did not decide how the
Commission should calculate average weekly wage when neither data set is available
because the employee was injured after just six weeks. In Jung v. Southland Corp., 351
Md. at 171-72, the Court held that the Commission may not recalculate average weekly
wage based on a wage increase that occurred after the date of the injury. The opinion
does not address whether the Commission may determine average weekly wage based on
the hours generally discussed at the time of hiring, before the injury. In Long v. Injured
Workers’ Ins. Fund, 448 Md. at 255, the Court held that a sole proprietor’s average
weekly wage ordinarily should be based on the proprietorship’s net profit, because net
profit is the “best approximation of the earnings that a sole proprietor actually takes
home[.]” Id. For newly-hired employees such as Mr. Wagstaff, we do not accept the
generalization that actual pre-accident earnings are the best approximation of what the
employee takes home. Under many circumstances, an approximation based on the hours
discussed at the time of hiring would be more accurate than a calculation based on
earnings from a small and arguably unrepresentative time period.

29
Commission determined the employee’s average weekly wage using his earnings from

slightly over one year before the accident, during which he had worked 202 days. Id. at

574.

Challenging that decision, the employee’s widow contended that “the basis under

the statute” for calculating average weekly wage was what the employee would have

earned “if the mines had been working to capacity, or to the limit of daily and weekly

working time in the region, eight hours a day for six days a week[.]” Id. at 575. The

Court rejected that theory and explained that the statutory term “full time” referred to

“‘all the time the mines in the region,’ including the mine of [the employer] ‘were

generally employed.’” Id. (quoting Campbell Coal Co. v. Stuby, 159 Md. at 288). The

Court reasoned that “variation in working time, reducing opportunities to earn, must be a

factor in the computation of average of weekly wages earned.” Stevenson v. Hill, 171

Md. at 577. The Court endorsed the view that average weekly wage should reflect the

“‘earnings in a normal week, regard being had to the known and recognized incidents of

the employment[.]’” Id. at 578 (quoting Anslow v. Colliery Co., [1909] A.C. 435, 437

(1909)).13

RBCI and its insurer contend that, under Stevenson v. Hill, an employee’s

13
RBCI and its insurer assert that Mr. Wagstaff presents the “same argument”
made by the employee’s widow in Stevenson v. Hill – i.e., that “full time” under the
statute means the hours when the employer is operating at maximum capacity. In fact,
Mr. Wagstaff contends that his average weekly wage should be based on a 40-hour week
because he and his employer had discussed those hours at the time of hiring. Nothing in
Stevenson v. Hill indicates that the employee’s widow presented evidence that the
employer and employee had discussed a 48-hour work week at the time of hiring.

30
“inability to work because the job site is closed” because of weather “should be taken

into consideration when calculating average weekly wage.” Although we might accept

that general proposition, the evidence presented here regarding the employee’s normal

work hours is not comparable to the evidence from Stevenson v. Hill. There, the record

included the employee’s 53-week earning history and information about the employer’s

days of operation in a full year before the accident, which they had agreed were no

shorter than those of others in the region. Stevenson v. Hill, 171 Md. at 574-75. Under

those circumstances, the claimant could not reasonably dispute that the 53-week earnings

history was representative of what the employee would earn working all the time his

employer and other employers in the region were generally operating.

The same cannot be said here. RBCI and its insurer relied exclusively on the wage

statement covering the six-week period before the accident. They did not provide

information about the total hours (including any overtime) that lift operators for RBCI, or

similarly-situated employees at RBCI or comparable firms, normally work throughout the

year. It is conceivable that RBCI or Selective Way could have compiled that type of

information, because workers’ compensation insurance premiums are typically based on

audits of the employer’s payroll figures. See Richard P. Gilbert et al., Maryland

Workers’ Compensation Handbook § 9.06[1], at 9-58 (3d ed. 2007). They had ample

opportunity to present that type of information, either at the hearing before the

Commission or to the circuit court for a de novo determination. See generally Bd. of

Educ. for Montgomery Cnty. v. Spradlin, 161 Md. App. 155, 187-88 (2005). Instead of

doing so, RBCI and its insurer simply insisted throughout this case that, as a matter of

31
law, evidence of what Mr. Wagstaff earned during the six weeks before his injury is

conclusive proof of his average weekly wage. Even now, they do not seek a remand to

offer evidence comparable to the evidence from Stevenson v. Hill; they only seek an

order finding that the correct average weekly wage is $317.44.

Ultimately, just as the restriction suggested by RBCI and its insurer cannot be

found in the statute or regulation, so too it cannot be found in case law. Neither

Stevenson v. Hill nor any other case cited by the appellants stands for the proposition that

a construction worker’s six-week earnings history, without more, is conclusive evidence

of what that worker would expect to earn in a normal week.14

CONCLUSION

For the reasons discussed above, we conclude that the Commission’s decision was

not premised on an error of law. The Commission received evidence that Mr. Wagstaff

was injured only a short time after being hired to work 40 hours per week, and the

circumstances called into question whether the actual hours worked in that time period

were representative of his normal working hours. Having been presented with this

information and with only two options for determining Mr. Wagstaff’s average weekly

14
In part of their argument, RBCI and Selective Way appear to appreciate that a
six-week earning history is not necessarily the best indication of what an employee would
earn. They assert that, if Mr. Wagstaff “had worked 60 hours for the six weeks prior to
the accidental injury, he would not be arguing that the Court should consider the fact that
he was hired for the purpose of working a 40-hour week.” In that situation (an injury
after a short period of heavy overtime), nothing would prevent the employer or insurer
from presenting evidence like the evidence offered in Stevenson v. Hill, to show the hours
that the employee would earn over a longer period of time, working all the time that the
employer and other comparable employers in the region generally operated.

32
wage, the Commission was not required to calculate his average weekly wage based on

the actual earnings in the six-week period before the accident. The judgment of the

circuit court confirming the decision of the Commission is hereby affirmed.

JUDGMENT OF THE CIRCUIT COURT
FOR TALBOT COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.

33