Injured Worker’s Average Weekly Wage is Based on Original Date of Injury when Reopening a Claim

In Jung v. Southland Corp., 114 Md. App. 541 (1997), the Court of Appeals considered the authority to modify an employee’s AWW subsequent to the initial determination of same.  The Claimant in Jung had previously incurred a temporary total disability (“TTD”) as a result of an accidental personal injury.  The employer had previously paid TTD in accordance with the WCC’s Order, and terminated doing so upon the employee’s return to work.  Eventually, however, the employee was forced to miss additional time from work on account of the same injury.  Although the employer resumed its TTD payments, the employee thereafter “filed Issues with the Commission, seeking an upward adjustment of his average weekly wage to reflect his most recent hourly rate.”  Id. at 544.

Reopenings for cases of TTD are governed by L&E § 9-622.  Although the reference to the State AWW is clear in that it pertains to “the date of reopening” under L&E § 9-622(a)(1)(ii), the statute is not as specific in regards to the individual’s AWW under subsection (a).  In Jung, the Claimant urged the court to construe his AWW based upon the date of reopening because his wages had increased from the time of the initial award.  In support, the Claimant pointed to the broad language in L&E § 9-736(b)(2) and L&E § 9-602(a)(3).

However, rather than accepting the Claimant’s arguments, the Court of Special Appeals held that the proper calculation of an employee’s AWW, for purposes of a reopening under L&E § 9-622, is based upon the original date of injury.  The court arrived at this conclusion in light of the plain language of L&E § 9-602(a)(1).  Id. at 548 (“The statutory definition of average weekly wage contained in § 9-602 states that average weekly wage is fixed as of the time of injury.” (emphasis added)).  The court further opined that such a holding did not affect the “flexibility” inherent in subsection three of L&E § 9-602(a):

The crucial factor in applying L&E § 9-602(3) . . . is whether the future increase in wages is too speculative . . . . [A]n earning loss award cannot be based on speculation as to the particular employment level or job classification which a claimant might eventually obtain.  Consequently, § 9-602(a)(3) is limited in its application, and most important, . . . focuses on circumstances as they existed at the time of injury.  Section 9-602(a)(3) does not authorize a recalculation of average weekly wage based on actual events occurring subsequent to the original determination.

Id. at 549-50 (internal citation omitted) (emphasis added).