Opinion
Docket No. 129065.
Decided August 17, 1992, at 9:30 A.M. Leave to appeal sought.
Bockoff, Zamler, Mellen Shiffman, P.C. (by Joel Jonas), for the plaintiff.
Conklin, Benham, Ducey, Listman Chuhran, P.C. (by Michael J. De Polo), for the defendants.
Before: WEAVER, P.J., and WAHLS and TAYLOR, JJ.
Defendants appeal by leave granted from an opinion and order of the Workers' Compensation Appeal Board. The issues on appeal concern the WCAB'S calculation of plaintiff's "average weekly wage" and benefits. We reverse.
Plaintiff had worked seven full weeks and two days of the eighth week when he suffered a heart attack that arose out of and in the course of his employment. During this period, plaintiff earned total gross wages in the amount of $2,772. The referee found that plaintiff's injury was not work-related and denied benefits. Nonetheless, the referee calculated a gross weekly wage of $346.50, an amount reached by dividing plaintiff's total gross wages by eight weeks. The WCAB concluded that plaintiff had been disabled by a work-related event, but also modified the referee's conclusion regarding plaintiff's average weekly wage:
Regarding plaintiff's second contention on appeal, we agree with plaintiff that apparently the administrative law judge counted plaintiff's last two workdays as a full week. Therefore, the administrative law judge listed plaintiff [sic] average weekly wage of $346.50 is less [sic] than the statutorily-based (MCL 418.371 [MSA 17.237(371)]) weeks "actually worked," or 7.4 weeks ($375.00).
The WCAB subsequently ordered that plaintiff be awarded weekly benefits in an amount equal to eighty percent of $375, or $300. On appeal to this Court, defendants do not dispute plaintiff's disability, but take issue with the WCAB'S calculation of plaintiff's average weekly wage, arguing that an average weekly wage should not be calculated by use of a partial week. We agree.
MCL 418.371(3); MSA 17.237(371)(3) provides:
If the employee worked less that 39 weeks in the employment in which the employee was injured, the average weekly wage shall be based upon the total wages earned by the employee divided by the total number of weeks actually worked. For purposes of this subsection, only those weeks in which work is performed shall be considered in computing the total wages earned and the number of weeks actually worked.
This case is factually indistinguishable from Tagliavia v Barton Malow Co, 185 Mich. App. 556; 463 N.W.2d 116 (1990). The panel in Tagliavia held that a week in which any work is performed must be considered a week "actually worked" under subsection 371(3). Thus, the average weekly wage of the plaintiff in Tagliavia who had worked six weeks and two days should have been calculated by dividing his total wages by seven weeks, rather than 6.4 weeks. Id. at 560. We agree with the reasoning of Tagliavia and adopt it as our own. Subsection 371(3) does not allow an employee's average weekly wage to be calculated by resort to fractional weeks. Our decision shall be binding precedent pursuant to Administrative Order No. 1990-6, 436 Mich. lxxxiv. The WCAB also erred when it awarded plaintiff benefits equal to eighty percent of his gross average weekly wage, rather than eighty percent of his after-tax average weekly wage. MCL 418.351(1); MSA 17.237(351)(1). We therefore reverse the opinion and order of the WCAB and remand the case for a redetermination of benefits that is consistent with this opinion.
Plaintiff claims that his average weekly wage should be calculated pursuant to subsection 371(6), rather than subsection 371(3). We reject this argument for the same reasons expressed by the WCAB in Tagliavia, supra, and quoted in that opinion.
Reversed and remanded. We do not retain jurisdiction.