by | Jun 21, 2022

In Simpson v. Lincoln Public Schools, the Nebraska Court of Appeals provided guidance for how to calculate an employee’s average weekly wage when the employee is an hourly wage earner who only works 9 months out of the year, during the school year.

While permanent disability benefits in Nebraska are based on a 40 hour per week minimum, temporary total disability benefits can be significantly lower. The argument in Simpson was over how to calculate the employee’s temporary disability average weekly wage and benefit rate.

The plaintiff was a school employee who worked only 9 months a year, but was paid monthly over a 12-month period. On appeal, the plaintiff argued that her average weekly wage was calculated incorrectly. She argued that her stipulated hourly rate of $15.12 should have been multiplied by 40 hours a week for a total of $604.80; as opposed to the $358.28 average weekly wage that was awarded.

In determining how to calculate an employee’s average weekly wage, the Court of Appeals noted that “the goal of any average income test is to produce an honest approximation of the claimant’s probable future earning capacity.”

The Court of Appeals cited Mueller v. Lincoln Public Schools, where the Supreme Court expressly rejected the calculation of multiplying the stipulated hourly wage by the number of hours worked per week for a school employee who only worked 9 months a year, but was paid monthly over a 12-month period.

The Court of Appeals stated that treating a school employee as though they worked 12 months out of the year, instead of just 9, “had the effect of distorting the employee’s average weekly wage well beyond what she was actually earning at the time of her injury.” Consequently, the Court affirmed the compensation court’s average weekly wage calculation of $358.28.

Our blog post discussing Mueller can be found here.

This post was drafted by Faith Kowalski, a law clerk at Baylor Evnen. If you have questions regarding average weekly wage, please call Paul Barta or Micah Hawker-Boehnke at 402-475-1075.