This case deals with average weekly wage calculation. The employee was a hockey player who had a history of playing for both minor league teams but was often called up to play games for the NHL. He obtained a position with the Minnesota Wild for the 2006-2007 hockey season. During that season, he played a number of games for the Houston Aeros, a minor league club for the Wild, and was then called up to play for the Wild. On November 6, 2006, he was injured during a Wild game when he was checked into the boards and sustained an intramuscular hematoma. When he was eventually cleared to play hockey again, he returned to the Houston Aeros and finished the season there. After that, he was released by the Wild and went to another minor league team.
At the time of his injury, he had what was called a “two-way contract” with the Wild. Under the contract, when he played for the Houston Aeros, he was paid a salary of $125,000 per year. When he played in the NHL, his salary was $450,000. When this went to hearing, one of the issues was average weekly wage. The employee alleged a wage of $12,032.10, based on his NHL salary. The Employer and Insurer proposed two alternatives for the wage. First, they argued the Employee was essentially a minor-league player who was injured after playing only four games in the NHL that particular season, so his wage should be based on his minor league salary, which equated to $2,406.42 per week. In the alternative, they put together a calculation based on the percentage of time the Employee spent in the NHL versus the minor league. They calculated that, in the 34 days prior to the injury, the employee spent 24 days, or 70.59% of his time in the minor league, and 10 days or about 29.41% of his time with the Wild. Applying those percentages to the weekly salaries resulted in a wage of $4,241.98 ($450,000 ÷ 52 = $8,653.85 x 29.41% = $2,545.10 and $125,000 ÷ 52 = $2,403.85 x 70.59% = $1,696.88. $2,545.10 + $1,696.88 = $4,241.98).
The compensation judge found that the wage was $4,241.88, based on the above formula. On appeal, the W.C.C.A. affirmed the wage determination. The court noted that the object of the wage determination is to arrive at a fair approximation of the employee’s probable future earning capacity. The Employer and Insurer argued that the NHL wages should be ignored. The court noted that, although the Employee only played for the Wild for a limited amount of time, it was speculative to assume that the Employee would not have stayed with the Wild had the injury not occurred. We cannot assume then, that he would have gone back down to the minor leagues had the injury not occurred. We have to take the Wild salary into account because the Employee was playing for them at the time of the injury, and could have continued to play for them. He had the skill and expertise to play in the NHL, prior to the injury. However, it would also be an error to conclude that the NHL wage was an accurate measure of his earning capacity given his previous employment history in the minor leagues. Therefore, the W.C.C.A. found that the compensation judge’s determination of wage did not either unfairly overstate or understate the Employee’s earning capacity. The court found this was a reasonable method of calculating average weekly wage.
This case gives us a new method of calculating average weekly wage where, during the period prior to the injury, the employee works different jobs and earns substantially disparate wages. This case shows that we do not need to just assume the wage the Employee was earning at the time of his injury is reflective of his earning capacity; instead we can use a new calculation based on the percentages of time the employee earned certain wages prior to the injury, resulting in a lower average weekly wage.