IN THE SUP ERIOR COURT

OF THE STATE OF DE LAWARE IN AND FOR SUSSEX COUNTY JERRY CROUSE : Appellant , : C.A. No. S14A-12-002 RFS : v. : : HY-POINT D AIRY FARMS, I NC. : Appellee. :

Submi tted: Apr

il 7, 2015 Decided : July 22 , 2015 ORDER Upon an App eal from th e Decisi on of the Ind ustrial Ac cident Bo ard. Affirmed. Nicole M. Ev ans, Esquire, The La w Offi ces of Andrea G. Green, 28412 Dupont Boulevard , Suite 10 4, Millsbor o, Dela ware, 19966, Att

orney for Appe llant. Andrew J. Carm

ine, Esq uire, Elzufon Aus tin Tarl ov & Mondell , P.A., 300 Delaware Avenue, Suite 1700 P .O. B ox 1630, W ilming ton, Del aware, 19899 Attor ney for Appellee.

Stokes, J
.1 Appellant’s Opening Br. at 1-2.
2 Appellee’s Answering Br. a t 1. 1 Before the Court is an appeal from the Industrial Accident Board (“IAB”), br ought by Jerry Crouse (“Appellant”). A ppellant seeks to reverse IAB’ s determ inationtha t c alculate d worker s’ com pensations rates for injurie s Claimant sustain ed while employed by Hy-Point Dairy Farms, Inc. (“Employer”). Appe llant

asserts IAB err

ed by e xcluding the

amount of parti al disabi lit y paym ents received and utilizing figures not supported by subst antial evi dence on the record to compute the compensation rates due. IAB and Employ er m ain tain IAB pr operlyexcluded A

ppellant’ s partial disability paym ents from

the worke

rs’ compensationrate equa

tion and employed ac curate figures based on the evidence of record yieldin g calculat ions tha t were free from legal err or. The Court has r

eviewed the recor

d, and subm

issi ons by the partie s and AFFIRMS the decisi on of IAB for the r easons set forth ther

ein. PROCEDURAL BACKGROUND Appellant s sustained two injuries while working for Employ er. 1 Followingthe second injur y, Employer pa id fo r Appe llan t’s medic al treat ment a nd lost wages in t

he form of total di sability

benefits. 2 The parties a

gree App ellant wa s entitled t o worker s’ com

pensation benefits,3 Id.
4 Id. 5 Id. at n.1; n.3.; Appellant’s Opening Br. at 5-6..
6 Appellee ’s Answe

ring B r. at 3; Ap

pellant’ s Opening

Br. at 1 -2.; see also, Industrial Accident Board Tr.

7 19 Del. C. § 2302 ; Appellant’s Opening Br. at 10. 8 See generally, Appellant’s Opening Br. 2 but disagree as to the a

mount ow ed. 3 On September 17, 20 14, Appellant filed a Motionwith IAB contesting the compensation rate. 4 Both parties agree that the gr oss wages earned by

Appellant for wor

k perform ed during the

twenty -six week

period is $15,054.74 , but Appell ant contend s the average wee kly wa ge (“AW W”) calculat

ion incorrec tly exc luded parti al disabili ty pay ments . 5 On October

29, 2014, I

AB held a hearing r egarding th e disputed A

WW a nd the followingcont enti ons f or IAB’s considera tion were submit ted. 6 Appella

ntcontends the language of

AWW is am biguous. 7 To that e ffect, Appellant claim s: (1) the weeks considered should bethe weeks actually worked, not the total twenty -six wee

ks, and (2) partial disability

paym ents received as par

t of worke

rs’ com pensation benefits shouldbe include d i n the AW W calc ulation. 8 Accordi ng to Appell ant, the a mount of part ial disability

receive d, $1,739. 41, should be added to the

earned w ages, an d then this am

ount should be divided by a total of twenty -two w ee ks, not tw enty- six9 Appellee’s Answering Br. a t 20-23. 10 Id. at 2.
11 Id. at 2; 10.
12 Appellee’s Answering Br. 2 . 13 Id.
14 Id. 15 Id. 16 Id. 3 weeks. 9 Appellan

t’s cal culations y

ielded an A

WW o f $763.37 a

nd a com pensation rate of $ 508.91. 10 Con ver sel y, Emp loyer

asserts S ection 2302 is unamb iguous and shou ld be interpreted accordin g to the plai n mea ning of the statute. 11 Emp loyer

states “the law provided no basis for adding any of his workers’ com pensation benefits to his ‘wage’ total.” 12 Employ er calculated the compensation rate without including the partial disability paym ents but add ing in v acat ion pay. 13 Em ployer submit s the rate

should be derived by adding together the wages earned, $15,054.74, and the vacat ion pay, $625.00. 14 Next, Employer contends in o rder to “fairly and accurately ” calcula

te AWW, the total wages earnedshouldbe divided by twenty -six wee

ks, as oppos ed to twenty-two weeks. 15 Emp loyer ’s calc ulations yield ed an AW W of $603 .07, and a compensation ra

te of $420. 05. 1617 Appellee ’s Answe ring B r. at 2; see also, Crouse v. Hy-Poin t Dairy Fa rms, Nos. 1411480, at 7 (Del. I.A.B. Nov. 24, 2014).

18 Appellee ’s Answe

ring B r. at 2; see also, Crouse, IAB 1411480 at 7. 19 Appellee ’s Answe

ring B r. at 2; see also, Crouse, IAB 1411480 at 7. 20 Appellee ’s Answe

ring B r. at 2; see also, Crouse, IAB 1411480 at 7.
21 Appellee’s Answering Br. a t 3. 4 On November 24, 2014, IAB made the following determinations: (1) the proper divisor is the num

ber of w eeks actu ally w ork ed, and ( 2) worke rs’ com pensation benefits, such as par

tial disabi lity pa

ym ents, ar e no t included in the total wages
e arned. 17 In this case, IAB determ ined the partial disability Appellant received , $1,739.41, should not be added to the earned wages, and the total wages e arned shouldbe divided by

twenty -two wee ks reflec ting the num ber of w eeks Appe llant actually worked. 18 As such, IAB det ermi ned theAWW by

utilizing the total wages earned, without inc luding com pensation receive d for disab ility o r

vacation pay, over the twenty -six wee

k period pr

eceding the accident , $15,054. 74, and divi ded by twenty -two. 19 Thus, by

IAB’ s calcula

tions, Appellants’ AW

W is $684. 31, yi elding
a com pensation rate of $456. 21. 20 Appellant timely app ealed IAB’s decis ion to exclude the part ial disabil ity paym ents fro m t he AW

W calc ulation on D ecem ber 23, 201 4. 21 To that e ffect, Appellant filed an Opening Brie f on Febru ary 13 , 201 5 see king revers al of I AB’s22 See generally, Appellant’s Opening Br. 23 See generally, Appellee’s Answering Br.
24 Recitation of the facts is adopted primarily from the Board’s decision. Crouse, IAB 1411480 at 3-7. The facts were also cross-r eferenced with the parties submissions. Appellant’s Opening Br.; Appellee’s Answer ing Br. 5 decision. 22 On Marc h 19, 2015, Emp loyer responded b y answ ering brie f noting the ir non-objec tion to the diviso r of twenty-two and requesting this Court to affirm IAB’s decision as to the exclusion of par tial disabi lity pa

ym ents. 23 STATEMENT OF FACTS The facts in this case are not in dispute. 24 Appel lant has b een em ployed by Employe r for over twenty

year s as a drive

r a nd salesman. Appellant sustained an injury while w orking for

Emp loyer

on August 26, 2013 (“initial inj ury”) . Follow ing the initial inj ury, Appellant receive d partial a nd total disa

bility due to physica l restrict ions that prevented Appel lant from working his regular job. When Em ployer
was unable to of

fer light- duty w ork, Appellant was entitled tototal disab ility b enefits and full com

pensation pu

rsuant to a

n agreem ent w ith Em

ployer ’s prior

workers ’ compensationbenefits carrier. When it was feasible, Appellant worked light-duty

to
accom modat e Appellant’s phy sical restrictio ns. Appellant earned a reduced w age and
was entitled topartial di sability benefits f

or the we eks h e work ed light -duty. On November

25 , 20 13 , Ap pel lan t re su med w ork in g fu ll -ti me and full-d uty upon release25 Harasika v. State , 2013 WL 1411233, at *3 (Del. Super. Feb. 28, 2013). 6 by his treatin g Doctor. On March 4, 2014, Appellant suffered a second work injury (“second injury ”) when he fell off the bac k of his truc k. Appel lant’s s econd inj ury r esulted in a concussion

and injur ies to ribs, lung s, right

leg, and r ight shoulder . As a r

esult of thi s accident , Appellant was restricte d from all work. At t he t ime of the seco nd i njur y, Appel lant ’s base sala

ry w as $125.00 p er day , which c alculate s to $625.00 p er wee k, and monthly commissions
. During the twent

y-six w eeks prec eding thesecond injury, Appellant received total disability

for thre e weeks, earning f ull com pensati on for those t

hree we eks; received eight wee

ks of parti al disabili ty benefits, in t he amount of $1,7 39.41 ; o ne week of vacati on pay, $625; and wa ges for f ourteen w eeks of fu ll- duty, at a rate of $625 per we ek. STANDARD OF REVIEW On appeal from

the Industr

ial Acc ident Boar

d, this Cou

rt’s r ole is to determ

ine whether subs tant ial ev iden ce exi sts t o sup port the Bo ard’s decision, and to exam ine the Board’s findings and conclusions for legal error. 25 Substantial evidence has been defined as “s uch relev ant evidenc e as a re asonable m ind mig ht accept

as adequa

te to26 Histed v. E.I. DuPont de Nemours &Co. , 621 A.2d 340, 342 (Del. 1993).
27 Kiefer v. Nanticoke

Health Se rvs. , 979 A.2d 1111 (Del. 2009). 28 Bundy v. Corrado Bro s. , 1998 WL 283460, at *2 (Del. Mar. 25, 1998). 29 Chavez v. David's Bridal , 979 A.2d 1129, 1133 (Del. 2008). 30 19 Del. C. § 2302.

7 sup port a conclusi on,” 26 and is “ more than a m

ere scint illa but les s than a prepond erance.” 27 This Court reviews legal dete

rmina tions of the

Board de novo . 28 The interpretation of

th e te rms of a settl emen

t agreem ent is revi ewed for

an error of law. 29 DISCUSSION Cal cul ati ng t he AWW A claimant’s benefits, i ncluding the AWW , for a w ork-rela ted in jury are calculated in accord ance wit h Delaw are’s Worker s’ Com pens ation Act (“Ac t”). 30 Under the statute, AWW

is defined

in part as mea

ning the “ weekly

wageearned by the employee at the time of the em ployee’s injury

at the job in which the employee
was injured, including overtime pay , gratuities and regularly paid bonuses (other than
an emplo yer’ s gratuity

or holiday

bonuses) but

excluding a

ll fringe or other in -kind31 Id. 32 Id. 33 Id. 34 Id. 8 employment benefits.” 31 Further, Section 23 02(b) provi des a detailed statutory schem

e describ ing how workers ’ compensation ra tes are t o be calcu lated. 32 A ccor ding to Section 2302(b), if an em ployee has worke d a t th e sa me job for a t least tw enty- six weeks , then the AWW is calcula

ted “by com

puting thetotal wages paid to the employee during the twenty -six wee

ks imm ediately precedin g the date o f injury and div idi ng b y twen tysix.” 33 Alterna

tively , if an e mploy ee has wo rke d less than twenty-six weeks but at least thirteen w eeks, the

AWW is calculated by taki ng “the total wage earne d by the employee in the em ploym ent in whic h the em

ployee was inj ured, divided by the total number of weeks actu ally worked in t hat employment.” 34 Last ly, employees inj ured prior to com pleting the first

thirteen weeks of employ ment are com pensated a number of differ ent way s. Spec ifically , the Code states the following : If an employee

sustains a compensable injury before completing that employee’s first 13 weeks, the average weekly wage shall be calculated as follows: 1. a. If t he contra ct was ba sed on hours w orked, by determ ining the number

of35 Id. 9

hours for eac h we ek c on tra cte d fo r by t he e mp loyee m ultiplied by

the emplo yee' s hourly

rate; b. If the co ntract w as ba sed on a weekly wage, by dete

rmini ng the wee

kly salary contracted for by

the employee; or c. If the contract was based on a monthly salar y, by m

ultiply ing the m

onthly salary by 12 an d dividing tha

t figure by

52; and d. If the hourly rate of earnings of the em ployee cannot be a scertain ed, or if the pay has not been designated for the work required, the average weekly wage, for the purpose of calculating compensation, shall be taken to be the ave rage weekly wage f or simil ar servic es perfor med by other em

ployee s in like emplo ym ent for the

past 26 we eks. 35 Therefore, AWW

equations c hange in corre lation wit h the length of

emplo ym ent, and weeks ac tually

worked. Whethe r IAB E

rred By E mploying th e AWW

Equation U

tilizing theTotal Number of Week

s Actually Worke d as the Div isor Ini tia lly, the parties disputed the proper divisor for the AWW formula. Emp loyer asserted the divisor should be twenty-six because Appellant has bee n employed with the Em ployer for over t wenty year s. Alte

rnatively , Appell ant disagreed contendingthe divisor should ref

lect the nu mber

of weeks ac tually

worked, twenty -two. Employe

r’s brief acknowledges Delaw are Supr eme Court pre cedent is instructive

and does not seek to appeal IAB’ s decision to implement a divisor based36 See, Appellee’s Answering Br. a t n. 3 (stating “[w]hile Hy-Point arg ued against the application of the Taylor decision to the present case before the B oard, that argument is not being raised o n appea

l and Hy-Point ac cepts the Board’ s finding s that the S upreme Co urt’s de cision is in st ru ct iv e for pu rp os es of de te rm in in g t he di vi so r t o b e u se d i n t he fo rm ul a e st ab li sh by § 2302(b)(1)”).

37 14 A.3d 536, 542 (Del. 2011). 38 Id. at 537. 39 Id. 10 on the number

of weeks actually

worked. 36 Hence, the parties e ffective ly agr ee the proper method of calculating Appellant’s AW W is to take the total wage ea rned by the emplo yee i n the em

ploym ent in whic h the em

ployee was inj ured, divi ded by t he total number of weeks act ual ly wor ked in that employment. Notwiths tanding this admis sion, the Court wil l review the merits of IAB’s decision to i mplem ent a diviso r based on the

numbe r of wee ks actuall y wor

ked. The Delaware Suprem

e Court addressed the applicati on of Sect ion 2302(b) i n Taylor v. Diam ond State Port Corp. 37 In Taylor , the cla imant was em ployed by employer for over a decade , but only perform ed work f or six teen of t he twenty -six weeks pri or t o th e wor k in jury. 38 The employ er

in Taylor asserted

the plain la

nguage of the statute required the claimant’s ear nings must be divided by twenty -six beca use she was em

ployed with the

emplo yer f

or longer t

han twent y-six weeks. 39 The Court de ter mined , however, the legislature intended only to include weeks where an40 Id. at 542.
41 Id.
42 Id. 43 Id. 11 employee actually earned wages in the calculation of an average w age. 40 Thus, if an employee did not wor

k d uring one of the twenty-six weeks, there w ere no earned wages for

that w eek to base compensation due. 41 As such, the Court concluded claiman t’s divisor

for AW W was sixteen, not twenty -six, bec ause the em ployee only actually worked f or sixteen of thetwent y-six we eks n otwit hsta ndin g the claiman t’s total length of employm

ent with the employer
. 42 The prop er metho d for cal culating the AWW consistent with Code requirem ents and judic ial prece dent is to ca lculate th e divisor ba sed on t he weeks actu allyworked, not earnin g capacit y, w hen an em

ployee did not wor

k the full twenty -six weeks prec edi ng a n in jury a nd h as b een emplo yed fo r lo nge r th an t went ysix weeks. 43 Here, the IAB correct ly ut ilized a divisor that

reflec ted the we eks Appellant actually worked because IAB determined actually worked means work actually perform ed. In this ca se, Appellant actually worked f or twenty -two out of

the twent

y-six weeks prior to his injury and was absent from work for four weeks. Three o f the four12

weeks Appellant was out on to tal disab ility; the rem

aining we ek Appell ant was on vacation. Twenty -six wee ks minus the four weeks absen ce yields twenty-two weeks actually worked. Accordi ngly, twenty -two is the proper div isor and

IAB’ s decision correct ly implemented twenty-two as a divisor based on the

substantial

evidence on the recor d. Therefore, this C ourt also conclu des IAB’ s determ ination to uti lize a divi sor reflect ing the num

ber of weeks actu all y work ed wa s pr ope r and the div iso r of t went ytwo in this case was supported by substantial evidence on the record Whethe r IAB E

rred By E xcluding P

artial Disa bility Pay

ments Fr om the AWW Calculation The remaining poi nt of cont ention i s whether IAB erred by utilizing th e gross wages earned by

Appellantand excludi ng partial disability paym ents for the purposes of AWW calculat ions. App ellant ass erts t he te rm w ages is am

biguous and sho uld inc lude partial di sability paym ents beca use the com

pensation rates ought to be represe ntativeof earni ng capacit y, not the actu al wa ges earn ed. C onv erse ly, Employe r submit s the statut

e is not am

biguous as to t

he definit ion of wages or

how to ca lculate AWW. Employ er asserts IAB’s exclusion of partial disability ben efit s from the AW

W calculation was proper.44 Doroshow, Pasquale, Krawitz & Bhaya v. Nanicoke M em’l Hosp., Inc., 36 A. 3d 336, 342-43 (Del. 2012) (internal quotations omitted)
.

45 19 Del. C. § 2302. 13 When reviewi n g a question of s tatutory interpretation, th e first st ep in the analy sis is to deter

mine whether the s tatute is ambiguous. As th e De law are Sup reme Court expla

ins: [a]t the outset, a court m

ust determ ine wheth er theprovision in q uestion is ambig uous. Am

biguity exists whe n a st atute is ca pable of being reasonably interpreted in two or m ore diffe rent sense s. If the

statute is unambi guous, then the re is no roo m for judicia l interpretation and t

he plain mea ning of the statutory language controls. If it is ambiguo us, we considerthe statu te as a whole, rath er than in parts, and we read each section in light of all others to produce a harmonious whole. 44 Turning to the Code it self, S ection 2302( a) state s: “Ave rage weekly wage” m

ean s the w eekly wage earned by the employee atthe time of the em

ployee's injury at the job in which the em ployee was injured, including overtime pay, gratuities and regularly paid bonuses (otherthan an em

ployer 's gratui ty or h oliday bonuses) but

excluding a

ll fringeor other i n-kind em ploym ent benef its. The term “ave rage we ekly wage” shall inclu de the rea sonable value of boar d, rent, housing or lodging receive d from

the em ployer , which s hall befi xed and determined from

the facts in each particular case. 45 Thus, this Court i s tasked to d eterm ine wheth er the te

rm w age in t

his context is ambig uous, and wheth er parti al disabili ty bene fits should be inc luded inaddition to gross wages earned when ca lculatin g an employee’s AWW. In Taylor, the D elawar e Supreme Court determ ined the statute at issue was46 Taylor, 14 A.3d at 539.
47 On January 7, 2007, the Gene ral Assembly amended Section 2302. Compare 19 Del. C. §2302 (1955), with 19 Del. C . §2302 (2007 ).

48 Nanticoke Mem’l Hosp., Inc., A. 3d at 343. 14 ambig uous as to “the proper interpretation of the w ord ‘wo rked’ i n section 2302(b)( 1).” 46 Based on this finding of ambiguity, Appellant asserts t he s tatute is ambig uous as to the

term wages and as a wh ole. A finding o f am biguity in a statute does no t n ece ss ari ly re nd er a st atu te a s a w ho le a mb iguou s. A sta tute can be ambig uous in whole

or in part
. In Taylor , the De laware Suprem e Court did

not address Section 2302(a) , or the t erm wages. Thus, the term wa ges or the statute as a whole is n ot ambiguou s because t he term worked was fo und to be ambiguous. Also, it is im

portant to a

cknowledg e the statute at issue was ame nded, in pa rt, to specifically define the term wages as applied to A

WW a nd to resolve

ambig uities. 47 The term wage is a

n unam biguous term

as util ized i n the statut

e because it is only subject to one rea sonable inte

rpretati on–the weekly

wage ea rned by the employee at the time of the inj ury inc luding the am ount of room and board, if

applicabl e excluding benefits. “It is well e stablish ed rule of statutory interpretation that the law favors rational and sensi ble const ruction.” 48 Here, the law wa s construct ed in a manner that defines what is included in wages and what is excluded. It would be il logical fo r this Courtto determ

ine a benefit , such as a

lost wage

benefit, is included

in the conc ept49 19 Del. C. § 2302. 50 Id. 15 of wages for the purposes of an AWW calculation when wages are expressly defined and benefi ts are omitted. The term wages is defined by a specifi c list

tha t in clu des ove rti me pay, gratuitie s, regularly paidbonuses, a nd room and board. This list i ndicates w ages for AWWseek to com

pensate a n injure d empl oyee o n the basis o f work tha t was ac tually performed

and housing, if housing is contem plated as a

part of th e employer

employee relations hip. Base d on the abse nce of the lost wage

benefits from

this list of w hat constit

utes wage s, the only

reasonab le interpr

etation co nsistent w ith the Code is that lost wage ben efits ar e not conside

red to be a

part of w ages. Next, Appellant seeks a f

inding from

this Court that

partial di sability

paym ents
are included in AWW

calculat ions because l ost

wage benefits are not expressly listed
as an exclusi on. It is t

rue Sect ion 2 302 doe s not expre ssly ex clude lost w age benefits. 49 Yet, it is also true that the statute does not expres sly or implie dly inc lude partial disabil ity benefits i n the calcu lation o f AWW. As not ed above, the Act defines w ages. 50 Wages, as defined by statute, consist of earnings by the em ployee for work per form ed, inclu ding gratuit

ies earne d, but

do not include “fringe” and other51 Id. 52 19 Del. C. §§ 2324-2325. 53 Giuricich v. Emtro l Corp ., 449 A.2d 232, 238 (Del. 1982). 16 “in-k ind emplo ym

ent benefits.” 51 Later, in separate sections, lost wage benefits are descri bed in det ail, incl

uding the for

mulas to calcula

te lost wa

ge benefi ts. 52 The General Assem

bly, i f it desir

ed, could have defi ned AW W to be c alculate d by firs t combining g ross earni ngs and l ost wage ben efits, if any. It di d not. There is n o eviden ce the om ission of lost

wage ben efits fr

om the calculat ion
was a result o f the General Assembly’ s failure to contemplate a scenario in which an employee was sim ultaneously

receivin g wages a

nd benefits , such as l ost benefi t wages, as Appell ant suggests . Rather, when “ provisions a

re expre ssly inc luded in
one part of a

st atute, but omi tted from another, it is reas onable to c onclude tha t the legislature was aware of the om ission and intended it.” 53 The Gene ral A sse mbly c arefull y cra fted and a

mende d the work

ers’ compensationstatutory

schem e. Thr oug hout the Act, th e Legisla ture distin ctly refere nces earnings a

nd benefits as separa

te values. The inclusion of bene fits in certain provisions but not others in conjunction with the defined distinctions between wages and benef

its, signif ies it wa s the intent

ion of the Gene ral Assem bly to om it benefits, including los t wagebenefits, f rom AWW calculat

ions. “The cour

ts ma y not54 Id. 55 Carmel Sarne v. Delaware Supermarkets, Nos.1379438 &1380625 (Del. I.A.B. April 17, 2014).

56 Id. 57 Id. 58 Id. 17 engraft upon a statu te language which has been c learly excluded t

herefro m by

the Legislatu re.” 54 After reviewi ng the statu te as a whole, it is clear to the Court thereis
adistinction between

earnings a

nd benefits and this dist inction precludes partial disability benefits f rom being engraf

ted upon the

statuteto be consid ered in ad dition to gross wages earned f or the purp ose of AWW calculati ons. Moreover, in an a nalo gous case, I AB hel d the AWW should ref lect the a mount of actual w ork perfo rmed

–the rate at thetime

of the ac cident–as opposed to ea rning capacity when the c laima

nt s u stained tw o successiv e injuri es. In Carmel Sarne v. DelawareSupermark

ets , a claimant wa s working light-duty following an initial inju ry. 55 Upon the second i njury, cl aimant wa s award ed a le sser AWW. 56 The claim ant sought to b e paid the f orme r AWW rate pri or to the second

inju ry. 57 IAB concluded the em

ployer should not be r

esponsible f

or paying a h igher AW

W rate because th e cl aima nt must be paid at the rate at the tim e of the accident for actual work performed in accordance with the statute. 5859 Taylor, 14 A.3d at 540-541. 60 Id. 18 Likewise, Appellant should be c ompens ated at a rate tha t reflec ts the am

ount of actual work performed. The inclusion of partial disability paym ents in th e AWW calculat ion is improper

because p artial di sability paym ents com pensate for work an employee was un abl e to per for m. In thi s case, IAB cor rectly calculat ed the compensationrate bas ed on the am ou nt Ap pellant ac tually

earned, not the am

ount thatcould have been earned, by excluding com pensation for work the employee did not perfo rm. Last ly, the Court declines th e opportunity to disrega

rd the plai n mea

ning of the statutein favor of Appell a nt’s allusion to the gl obal purpose of worke

rs’
c ompens ation benefits. Appellan t mai ntains the c ompens ation rate s ought to b e represe ntativeof his ear

ning capac ity, not

the actua l wages e arned in

accorda nce with th e holding in Taylor
. 59 In Taylor , the De laware Suprem e Court not

ed th a t Delawa re’s General Assembly intended employees be com pensated f

or lost ear ning capacity and not act

ual earni ngs. 60 Merely asserting an overarc hing principle is insuffic ient to wa

rrant con struing
astatute through an exercise of mental gym nastics when the language is clear. The Taylor opinion itself reads: “[i]n our constitutional system , this Court's role i s t o61 Id. 19

interpretthe statuto ry la

nguage that

the Gene ral Asse mbly

actually ado pt s, even if unclear and explai n what we

ascerta in to be the l egislative

intent wit

h out rewrit

ing the statute t o fit a parti cular poli cy position .” 61 Here, the exclus ion of benef its from gross wage s is clear . Ther efore, there is n ot a need toascerta in legislat ive intent. Further, the recor

d contains a

sufficie nt degree

of evidence to warr ant

a finding thatAppellant was not entitled to include p artial di sability benefits i n the calc ulation of AWW based on the plain m eaning of the statute. If the plain languag e o f the statutedoes not suppor

t the result Appella

ntseeks, th e proper remedy is solely for the General Assembly

to consider. In sum, IAB posse ssed a fir m basi s for

determ ining the te

rm w ages, as utilized in the statute , was una

mbiguou s. Furth er, IAB did not com mit a n error of law by utilizi ng a divisor of

twenty -two or e xcluding par tial disabi lity pa

ym ents from the AWW calcu lation. IAB prope rly e mploy ed the AW

W equat ion in this ca se in accordance with the pl ain me aning of th e statute, and the dec ision is suppor ted by substan tial evid ence on th e record.20 CONCLUSION Considerin g the fore going, the B oard’s decision is AFFIRMED
. IT IS SO ORDERED. /s/ Richard F. Stokes

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_____________ Richard F . Stokes, Judge