Latest Court of Appeals opinion on workers’ compensation

Just a few days before Christmas, the Court of Appeals published another set of decisions. Barrett v. All Payment Services is workers’ comp case that deals with an injured stuntman. The plaintiff worked as a professional stuntman, and in 1993 he injured his back while performing a car jump stunt on the set of a television series called “Bandit, Bandit”. Although in pain, the plaintiff continued to work off an on until 2001, when he had two surgeries for his back. The Industrial Commission had awarded temporary partial disability benefits for the period between 1993 and 2001, and total temporary disability benefits from 2001 onwards. The Court affirmed in part and reversed in part. With regard to the first period, the Court reversed because although the Commission had found that the plaintiff had reduced ability to work as a stuntman, it completely failed to make any findings about whether he could work in any other field. Such a finding is necessary in determining disability. With regard to the latter period, the Court affirmed the Commission’s conclusion that the plaintiff was totally disabled.

But the Court also reversed the Commission’s conclusion on plaintiff’s average weekly wage (AWW). The AWW question was difficult because of the nature of the plaintiff’s work: temporary work for different employers, short periods where he was highly paid, with many periods of no pay. The Commission found that using the standard AWW calculation methods (average pay over different periods) would not be fair, so used Method 5 for exceptional cases. Specifically, it averaged the plaintiff’s pay from all employers for the year before he was hurt.  Although sympathetic to this approach, the Court was compelled to reject it because the Supreme Court has repeatedly held that an AWW calculation cannot encompass pay from other employers besides the employer where the injury occurred. The Court didn’t have an alternate method to recommend to calculate a fair AWW; it just remanded. But it also asked the Supreme Court to take the case on discretionary review to provide the right answer in cases like this one.