by | Mar 19, 2021

The Court of Appeals of Iowa affirmed a decision from the Iowa Workers’ Compensation Commission that held that a week during which an employee works only a few hours less than other weeks can be excluded from the average weekly wage calculation in Regional Care Hospital Partners, Inc. v. Marrs.

As we know in Iowa, an employee’s average weekly wage is usually determined by the 13 weeks of pay immediately preceding the injury. However, “A week which does not fairly reflect the employee’s customary earnings shall be replaced by the closest previous week with earnings that fairly represent the employee’s customary earnings.” IOWA CODE §85.36(6). What constitutes an employee’s “customary earnings” is a question of fact with no clear standard.

In Marrs, the Commissioner determined that a two-week period during which the employee worked 54.75 hours did not fairly represent her regular hours in all other relevant pay periods which averaged 62.5 hours. The difference amounted to less than 4 hours per week.

At the hearing, the employer argued that a less than 4 hour deviation between weeks was not significant enough to warrant exclusion. However, the Commissioner determined that a 4 hours per week deviation from what the employee normally worked, was enough to categorize the weeks as not reflective of the employee’s “customary earnings” under Section 85.36(6).

The Commission’s decision and the Court of Appeals’ affirmation shows not only that a 4 hour deviation in the amount of hours worked can warrant an exclusion under Section 85.36(6), but the Marrs decision is also a good reminder of how case specific average weekly wage determinations can be. What weeks will be excluded, and what weeks will be included will depend on the unique set of facts in each case.

This post was drafted by Emily Fehringer, a law student and law clerk at Baylor Evnen. If you have questions about what constitutes an employee’s “customary earnings,” or if you have questions in general regarding how to calculate an employee’s average weekly wage more generally, please contact Paul Barta or Micah C. Hawker-Boehnke at 402-475-1075 for more information.