Richard Beavers Constr., Inc. v. Wagstaff

Panel: Meredith, Berger, Arthur, JJ. * Arthur, J. ⁴ Under the Maryland Workers' Compensation Act, employees who suffer disabling injuries in work-related accidents receive compensation to help offset their lost earning capacity. The amount of compensation is determined as a percentage of the employee's "average weekly wage" at the time of the accident. This appeal concerns the proper determination of the average weekly wage for an employee who became disabled in a workplace accident just six weeks after he was hired to work full time at a construction company. As a result of inclement weather, he had worked substantially less than 40 hours per week in the six weeks before the accident.

During that time, he received payment only for hours when he actually worked. The parties presented the Workers' Compensation Commission with only two options for determining the employee's average ²¹⁴ weekly wage. The employee contended that his average weekly wage should be based on the 40-hour work week for which he had been hired; the employer and its insurer contended that the average weekly wage should be no higher than the average of the actual earnings from the six weeks ⁵ before the accident. After a hearing, the Commission agreed with the employee and awarded him compensation based on wages from a 40-hour work week.

The employer and insurer sought judicial review, and the Circuit Court for Talbot County confirmed the Commission's decision. The employer and insurer have appealed to this Court. Because they have not shown that the Commission's decision is premised on an error of law, we affirm the judgment confirming the decision. FACTUAL AND PROCEDURAL BACKGROUND The factual record for this case consists of testimony and documents offered to the Workers' Compensation Commission and some additional materials submitted to the circuit court in the judicial review proceeding.

Neither the veracity of the testimony nor the accuracy of the documents are in question. In the circuit court, the parties purported to "agree" that there was no dispute as to the underlying facts, but they did not prepare any formal stipulation to clarify their agreement. Although the parties continue to assert that there are no factual disputes, they have not given this Court an agreed statement of facts. Their respective briefs present competing factual summaries, each emphasizing certain facts at the expense of others.

In fairness to all parties, this opinion will begin by examining all facts identified by the parties (including those facts that one side or the other may have declined to discuss). A. Mr. Wagstaff's Employment with Richard Beavers Construction, Inc. The employee in this case, Dexter Wagstaff, began working as a lift operator for Richard Beavers Construction, Inc. (RBCI), on or around February 15, 2013. RBCI agreed to pay Mr. Wagstaff at a rate of $18.95 per hour. According to Mr. Wagstaff, RBCI hired him to work "full time," meaning "40 hours a week[.]" Although he needed to be available to work eight hours a day for five days a week, his supervisors ⁶ instructed him not to report to the construction site on days when it was raining or snowing.

He did not receive payment for hours or days when he could not work because of poor weather. Mr. Wagstaff often worked full, eight-hour days during his first six weeks of employment, but frequent rain and occasional snow prevented him from working full, 40-hour weeks. RBCI's records show that, during that six-week period, he worked an average of only 16.75 hours per week, for which he received average gross earnings of $317.41 per week. 1 His highest totals occurred in his sixth week of employment, when he worked three full days (24 hours) and earned gross wages of $454.80. Poor weather was the only reason that he ever missed a day of work with RBCI.

B. The Accidental Personal Injury and Resulting Disability On the morning of April 1, 2013, Mr. Wagstaff suffered an accidental injury at ²¹⁵ the construction site when he fell through the roof and landed face-first on the warehouse floor, 18 feet below. The following summary of his injuries was later presented to the Commission: He was knocked unconscious. He sustained multiple facial injuries, which included a fractured skull, two fractured cheekbones, a fractured right eye orbital, multiple chipped teeth with his front tooth knocked out, fractured nasal bone. In addition, he injured his neck, his thoracic spine, his left shoulder, his back, and his left knee.

An ambulance transported Mr. Wagstaff to Peninsula Regional Hospital, where he underwent an array of tests. Because ⁷ of the severity of his injuries, he was airlifted by helicopter to the University of Maryland's Shock Trauma Center. There, a surgical team "performed an eight-hour surgery to Mr. Wagstaff's right eye socket and placed titanium plates and screws in his right and left cheeks." Upon his discharge, Mr. Wagstaff continued to suffer from his injuries. He soon returned to the emergency room, and he was hospitalized for another three days for various symptoms, including: headaches, dizziness, vertigo, loss of consciousness, double-vision, irritability, insomnia, short-term memory loss, and other effects of post-concussion syndrome.

For over a year after the accident, he underwent frequent occupational therapy to help him cope with the neurological effects of his injury, as well as the continuing pain in his neck and shoulder. Although the accident occurred on April 1, 2013, RBCI paid Mr. Wagstaff $758.00 for a full 40 hours for the week that ended on April 3, 2013. For a short time thereafter, RBCI continued to send him paychecks in the amount of $758.00. C. Proceedings before the Workers' Compensation Commission Three weeks after the accident, on April 22, 2013, Mr. Wagstaff submitted a claim with the Workers' Compensation Commission.

On the claim form, he reported his "Gross Weekly Wages" as $758.00, the amount that he would earn from working 40 hours at the rate of $18.95 per hour. In response, RBCI submitted its payment records. RBCI claimed that Mr. Wagstaff had actually earned an average of $317.38 per week during the six weeks before the accident. On May 31, 2013, the Commission issued an order stating that Mr. Wagstaff had sustained an injury arising out of and in the course of his employment and that he was temporarily totally disabled as a result.

The Commission ordered RBCI and its insurer, Selective Way Insurance Company, to pay for Mr. Wagstaff's medical treatment. Based on the information that had been submitted at the time, the Commission determined that Mr. Wagstaff's average weekly wage was $317.38 ⁸ as of the date of the accident. Using the statutory formula for compensation based on temporary total disability ( see Md. Code (1991, 2016 Repl. Vol.), § 9-621 of the Labor and Employment Article ("LE") ), the Commission ordered RBCI and Selective Way to pay Mr. Wagstaff two-thirds of that figure, which the Commission rounded up to $212.00 per week.

The order expressly reserved "the right of both parties to have the issue of average weekly wage [a]djudicated at the first hearing before the Commission." On April 16, 2014, the Commission held a hearing to address the issue of Mr. Wagstaff's average weekly wage, as well as his various requests to authorize continuing medical treatment. In introductory remarks, RBCI and its insurer asserted that the average weekly wage was "$317.44 per ²¹⁶ the wage statement." Through counsel, Mr. Wagstaff announced that he was "contesting" that issue and that his average weekly wage should be $758.00, based "on the 40-hour week at $18.95 an hour[.]" The Commission informed the parties that it would "have to take testimony on that [issue]" and "determine the wage based on the evidence presented" at the hearing. On the wage issue, Mr. Wagstaff gave the following testimony: Q: ... [W]ere you hired full time or part time by Mr. Beavers? A: Full time.

Q: All right. Is that 40 hours a week? A: Yes. * * * Q: Sir, were you working full weeks when you were hired? Did you work a 40-hour week?

A: Yes, if it didn't rain. Q: All right. Now, if it rained, what happened? A: We don't work.

Q: Would you be at work though? Would you go to work? A: No, we was told not to. Q: Were you called by the employer to not work? ⁹ A: No, we just know not to go when it rain.

Q: All right. Other than for bad weather, were there any other reason that you wouldn't go to work? A: No. Q: So it was just for bad weather during that time. A: Yes, because we was outside on the roof.

Q: All right. And I assume, sir, based on the pay stubs ... that the employer and insurer showed us, there were a lot of weeks where you didn't work 40 hours. Was that all because of weather? A: Yes.

The only other witness on the wage issue was Mr. Richard Beavers, the owner of RBCI. Mr. Beavers assured the Commission that the records of Mr. Wagstaff's hours were accurate because he had been hired for "a government project" for which the payroll needed to be "certified every week" by RBCI's bookkeeper. Although he admitted that he did not personally hire Mr. Wagstaff, Mr. Beavers recalled that he did not "promise" that Mr. Wagstaff could work "any exact number of hours[.]" Mr. Beavers testified that he indicated to Mr. Wagstaff "that he could work when work was available[.]" When asked whether he was "aware that [Mr. Wagstaff] was hired on a full-time basis," Mr. Beavers answered: "I would assume so." Mr. Beavers also testified that, in the week of the accident, he paid what he called "a full check" to Mr. Wagstaff in the amount of $758.00, "based on a 40-hour week." Mr. Beavers explained that, "at some point" after the accident, RBCI "made the transition from paying him [for] 40 hours to paying him only a 500-dollar check," which RBCI then continued to do for several months. During cross-examination, Mr. Beavers admitted that he decided to make the supplemental payments of $500 per week because he knew that Mr. Wagstaff was receiving compensation based on "a far lower figure" than the $758.00 that Mr. Wagstaff "would have made assuming he was working five days a week full time." ¹⁰ After taking evidence, the Commission declined to hear arguments on the average weekly wage issue.

On the same day as the hearing, the Commission issued an order stating that Mr. Wagstaff's "true average weekly wage is $758.00" and ordering that "the temporary total disability rate shall be adjusted accordingly[.]" Under the statutory ²¹⁷ formula, therefore, Mr. Wagstaff was entitled to receive $505.33 per week during the period when he was temporarily totally disabled. See LE § 9-621. The order further stated that RBCI and its insurer were entitled to a credit for the gratuitous payments that RBCI had made to Mr. Wagstaff after the injury. D. Judicial Review in the Circuit Court RBCI and Selective Way filed a timely petition in the Circuit Court for Talbot County, seeking review of the Commission's decision.

During discovery, Mr. Wagstaff gave deposition testimony that was consistent with, but more detailed than, his testimony to the Commission. He reiterated that RBCI had hired him "to work full time." He recalled that, although he did not sign an employment contract, he filled out an application form on his first day with the understanding that he "was applying for a full-time job." He explained that his position required him to be ready to work every weekday from 6:00 am until around 3:00 pm. 2 He admitted that, at the time he was hired, he understood that he would not receive pay when he could not work because of weather. He further admitted that this arrangement was "typical in the position of a field operator ... working outdoors[.]" Mr. Wagstaff recalled that, soon after he started working for RBCI, rain and snow prevented him from working full 40-hour weeks. On some mornings, he would receive instructions not to report for work.

If it rained unexpectedly after the crew arrived, he would receive pay for "two hours just for being there." He maintained, as he did in his testimony to the ¹¹ Commission, that bad weather was the only reason that he ever missed a day or partial day of work. 3 Based on this deposition testimony and the record of the proceedings before the Commission, RBCI and its insurer moved for summary judgment. They contended that the calculation of Mr. Wagstaff's average weekly wage depended entirely on a question of law. They argued that his average weekly wage "should be calculated based on the actual hours worked by [him] when work was available[,]" and that the days he missed because of "inclement weather should be considered as part of the wage calculation as a matter of law[.]" On that basis, they contended that the "correct" average weekly wage was $317.44. In response, Mr. Wagstaff argued that the $317.44 figure did not "represent a fair and accurate measure of his earnings" because it was based on "a limited number of weather shortened weeks[.]" In purported reliance on LE § 9-602(a)(3), he also argued that the statute permitted the Commission to account for the likelihood that his wages "could be expected to increase under normal circumstances[.]" The circuit court denied the summary judgment motion in a simple order, without announcing its reasons.

Shortly before the scheduled trial date, RBCI and its insurer withdrew their jury trial request. All parties filed a joint motion, stating that they "agree[d] that there [was] no genuine dispute of material fact" ²¹⁸ and that they "intend[ed] to proceed with oral arguments addressing the legal issue" in the Commission's order. Soon thereafter, RBCI and its insurer submitted a memorandum of law, which essentially reiterated the arguments that they had advanced in support of their summary judgment motion. 4 ¹² The circuit court heard oral arguments on October 19, 2016. A few weeks later, on November 2, 2016, the circuit court issued an order confirming the Commission's decision.

In a written opinion, the court stated that the parties had presented the sole legal issue of whether the average weekly wage should be "based on the average of the wages that Mr. Wagstaff actually received" or whether it could be based on "what RBCI had agreed to pay him." The court concluded: "He had been promised $758.00 per week, and it is reasonable to conclude that this figure represents an expected increase in salary and, therefore, the Court finds that $758.00 is Mr. Wagstaff's average weekly wage." After the entry of judgment, RBCI and Selective Way noted this timely appeal. DISCUSSION In this appeal, the employer (RBCI) and its insurer (Selective Way) raise the single issue of whether the Workers' Compensation Commission erred when it determined that Mr. Wagstaff's average weekly wage was $758.00. 5 RBCI and its insurer contend that the Commission's decision, as well as the circuit court judgment confirming it, are "incorrect as a matter of law." They argue that the Commission was required to calculate average weekly wage by adding up gross earnings from the six weeks before the accident and then dividing that total by six. On that basis, they seek reversal of the Commission's decision and an order finding that the "correct" average weekly wage is $317.44. Because the appellants have challenged a decision of the Commission, our analysis begins with the standard set forth in the Workers' Compensation Act.

In a case involving accidental personal injury, the court's task is to "determine ¹³ whether the Commission: (1) justly considered all of the facts about the accidental personal injury ... ; (2) exceeded the powers granted to it ... ; or (3) misconstrued the law and facts applicable in the case decided." LE § 9-745(c). The court must confirm the decision unless it determines that the Commission exceeded its authority or misconstrued the law or facts. Uninsured Empl'rs' Fund v. Pennel , 133 Md. App. 279 , 288-89, 754 A.2d 1120 (2000). A decision of the Commission "is presumed to be prima facie correct," and "the party challenging the decision has the burden of proof." LE § 9-745(b)(1)-(2).

This presumption of correctness, however, does not extend to legal determinations, which are subject to independent review by the courts. Montgomery County v. Deibler , 423 Md. 54 , 60, 31 A.3d 191 (2011). The courts are "under no constraint" to uphold a decision if it is "premised solely upon an erroneous conclusion of law." ²¹⁹ Pro-Football, Inc. v. McCants , 428 Md. 270 , 283, 51 A.3d 586 (2012) (citation and quotation marks omitted). RBCI and its insurer assert that "this matter presents a question concerning the method of calculating average weekly wage," which should be reviewed without any deference.

Mr. Wagstaff agrees that the central issue in this case is one of law. Likewise, the circuit court expressly treated the issue as a purely legal one. In general, where the parties to a judicial review proceeding "agree on the facts, leaving the interpretation of [a statute] as the sole legal issue[,]" the appropriate standard of review is de novo. Johnson v. Mayor & City Council of Balt. , 430 Md. 368 , 376, 61 A.3d 33 (2013).

In cases where parties have presented competing methods for determining an employee's average weekly wage, the Court of Appeals has stated that "the issue essentially is a question of law" ( Long v. Injured Workers' Ins. Fund , 448 Md. 253 , 265, 138 A.3d 1225 (2016) ), and that "treating the issue ... as one of law is consistent with th[e] Court's prior opinions." Gross v. Sessinghause & Ostergaard, Inc. , 331 Md. 37 , 48, 626 A.2d 55 (1993). ¹⁴ According to RBCI and its insurer, this case turns on a matter of statutory and regulatory interpretation. They contend that, as a matter of law, an employee's average weekly wage "should be calculated using the wages actually earned during the period worked prior to the accidental injury." They argue that this conclusion follows from a "plain reading" of two provisions: LE § 9-602(a)(1), which governs the general computation of average weekly wage; and COMAR 14.09.03.06, which sets forth the procedure for the Commission to determine average weekly wage. When we are called upon to interpret any statute, we first examine the ordinary meaning of the enacted language, reading the statute as a whole to avoid an interpretation that might nullify another part of the statute.

Reger v. Washington Cnty. Bd. of Educ. , 455 Md. 68 , 96, 166 A.3d 142 (2017). If the statutory language is sufficiently clear, the interpreter normally will have no need to look beyond the statute itself. Id.

These basic principles of construction guide the interpretation of regulations as well as statutes. Hranicka v. Chesapeake Surgical, Ltd. , 443 Md. 289 , 298, 116 A.3d 507 (2015). "When interpreting the Workers' Compensation Act, 'additional principles of interpretation enter the equation.' " Hollingsworth v. Severstal Sparrows Point, LLC , 448 Md. 648 , 655, 141 A.3d 90 (2016) (quoting Montgomery County v. Deibler , 423 Md. at 61 , 31 A.3d 191 ). The Act expressly states that it should not be "strictly construed" ( LE § 9-102(b) ), but instead that it should be "construed to carry out its general purpose." LE § 9-102(a).

The purpose, as stated in the preamble to the original version of the Act, "was to equitably distribute the burden of workplace accidents among the State, taxpayers, employees, and employers." Wal Mart Stores, Inc. v. Holmes , 416 Md. 346 , 362, 7 A.3d 13 (2010) (citing 1914 Md. Laws ch. 800). Elaborating further, the Court of Appeals has explained: "The purpose of the Act is 'to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning ¹⁵ capacity resulting from accidental injury arising out of and in the course of employment.' " Hollingsworth v. Severstal Sparrows Point, LLC , 448 Md. at 655, 141 A.3d 90 (quoting Elms v. Renewal by Andersen , 439 Md. 381 , 399, 96 A.3d 175 (2014) ). The Court of Appeals has "repeatedly emphasized" that the Act is "remedial" in nature and "that it 'should be construed as liberally in favor of the injured ²²⁰ employees as its provisions will permit in order to effectuate its benevolent purposes.' " Montgomery County v. Robinson , 435 Md. 62 , 82-83, 76 A.3d 1159 (2013) (quoting Howard Cnty. Ass'n for Retarded Citizens, Inc. v. Walls , 288 Md. 526 , 530, 418 A.2d 1210 (1980) ).

Accordingly, where the meaning of the Act is unclear, the interpreter should " 'resolve any uncertainty in favor of the claimant.' " Johnson v. Mayor & City Council of Balt. , 430 Md. at 377 -78 , 61 A.3d 33 (quoting Breitenbach v. N.B. Handy Co. , 366 Md. 467 , 473, 784 A.2d 569 (2001) ). On the other hand, a faithful interpreter must not ignore the statute's plain meaning or create ambiguity where none fairly exists, simply to allow an injured worker to prevail. Reger v. Washington Cnty. Bd. of Educ. , 455 Md. at 96 -97 , 166 A.3d 142 .

The dispute here centers on the term "average weekly wage." Although the current version of the Act includes no formal definition of that term, LE § 9-602(a)"describes the general computation" ( Long v. Injured Workers' Ins. Fund , 448 Md. at 266, 138 A.3d 1225 ) of average weekly wage by "list[ing] the elements to be considered as within" it. Gross v. Sessinghause & Ostergaard, Inc. , 331 Md. at 39 , 626 A.2d 55 . It provides, in relevant part: (a)(1) Except as otherwise provided in this section, the average weekly wage of a covered employee shall be computed by determining the average of the weekly wages of the covered employee: (i) when the covered employee is working full time; and (ii) at the time of: ¹⁶ 1. the accidental personal injury[.] LE § 9-602(a)(1).

RBCI and its insurer assert that there is "no uncertainty in the law" as it applies to Mr. Wagstaff's average weekly wage. They focus on the words: "the average of the weekly wages of the covered employee ... when the covered employee is working full time; and ... at the time of ... the accidental injury[.]" They argue that, it is "consistent" with a "plain reading" of these words to require the Commission to determine average weekly wage based solely on the actual earnings before the accident. In what they characterize as nothing more than a "plain reading," RBCI and its insurer offer a few paraphrases of this provision. In one such attempt, from their opening brief, they say that the statute provides that average weekly wage must be calculated "based upon the wages earned while the Claimant is working and at the time of the accidental injury." (Emphasis added.) This paraphrase subtly shifts the meaning of the text by diluting the key phrase "working full time." Those words should not be overlooked.

See Merrill v. State Military Dep't , 152 Md. 474 , 479, 136 A. 897 (1927) (noting, in dispute over the proper measure of average weekly wage, that the court should "keep[ ] in mind ... that [it] shall be taken to mean the average weekly wage earned by an employee when working on 'full time' "). In another such attempt, from their reply brief, RBCI and its insurer assert that under a "plain reading" average weekly wage must be "based upon the actual weeks worked prior to the date of accident." (Emphasis added.) If in fact the statute said that average weekly wage must be computed using earnings from the "actual weeks worked prior" to the accident, then we might be persuaded by their interpretation. But the statute does not use those words, or other similar words that might have expressed that same meaning. Instead, it uses a more unusual wording: "the average of the weekly wages of the covered employee ... when the covered employee is working full time[.]" The meaning of that phrase is not ¹⁷ immediately clear for an employee such as Mr. ²²¹ Wagstaff, who was hired for the purpose of working full time, but who was not actually working those full-time hours before the accident.

See Stevenson v. Hill , 171 Md. 572 , 576, 189 A. 910 (1937) (observing that the term " 'full time' is an expression of questionable application in some circumstances"). In our judgment, these attempts by RBCI and its insurer to paraphrase LE § 9-602(a)(1) simply demonstrate that the meaning itself is not apparent from the letter of the statute. 6 Longstanding precedent indicates that the Act's concept of "average weekly wage" has always suggested, to some extent, a projection of what an employee would have gone on to earn if not for the accidental injury. In Campbell Coal Co. v. Stuby , 159 Md. 280 , 150 A. 878 (1930), the Court of Appeals considered a dispute over how to instruct a jury about average weekly wage. The employer had asked for an instruction that " 'the average weekly wage of the deceased employee was the total amount the said employee earned over such period of time immediately preceding his fatal injury as the jury may find it necessary to consider in order to arrive at a fair average divided by the number of weeks embraced by such time.' " Id. at 288 , 150 A. 878 (emphasis in original).

Instead, the trial court instructed the jury "that 'the average weekly wage of the deceased employee was the total amount the said employee might have earned working all the time the mines in the region were generally employed over such period of time, immediately preceding his fatal injury, as the jury may find it necessary to consider in order to arrive at a fair average, divided by the number of weeks embraced by such time[.]' " Id. at 287 , 150 A. 878 (emphasis in original). The Court of Appeals reasoned that the trial court's instruction was "in conformity with the statute," which at that time stated ¹⁸ "that average weekly wage shall be taken to mean 'the average weekly wage earned by an employee when working on full time[.]' " Id. at 288 , 150 A. 878 . Citing Campbell Coal and other cases, the Court of Appeals later wrote that "average weekly wage is based on what the employee would earn from the employer where working under a specific contract of hire existing between the employer and employee." Crowner v. Balt. United Butchers Ass'n , 226 Md. 606 , 610, 175 A.2d 7 (1961) (emphasis added). 7 The Court's use of conditional language (i.e., what the employee "might have earned" or what the employee "would earn") is consistent with the Act's overall purpose of compensating injured workers for loss of earning capacity .

For his part, Mr. Wagstaff also makes his own attempt at what he calls a "plain reading" of part of the statute. He purports to rely on LE § 9-602(a)(3), which provides: (3) If a covered employee establishes that, because of the age and experience of the covered employee at the time of the accidental personal injury ..., the wages of the covered employee could be expected to increase under normal circumstances, ²²² the expected increase may be taken into account when computing the average weekly wage of the covered employee under paragraph (1) of this subsection. LE § 9-602(a)(3). Although Mr. Wagstaff did not cite this provision to the Commission, he argues that the Commission "properly relied on" it in finding his average weekly wage to be $758.00.

He theorizes that the Commission accounted for an "expected increase in salary, with more favorable working conditions when compared to lower weekly wages [that he had] earned while working weather shortened weeks just prior to his accident." ¹⁹ The obvious flaw in Mr. Wagstaff's argument is that an "expected increase" because of weather conditions that have no relation to an employee's age or experience cannot be said to be an increase "because of the age and experience of the covered employee[.]" LE § 9-602(a)(3). Even affording the Act a liberal construction, we cannot simply ignore that qualifying phrase. In other jurisdictions, provisions similar to LE § 9-602(a)(3) have been interpreted to apply to employees such as "apprentices, student nurses, and recent college graduates." Jung v. Southland Corp. , 114 Md. App. 541 , 549, 691 A.2d 263 (1997) (citations omitted), aff'd , 351 Md. 165 , 717 A.2d 387 (1998). For our purposes, LE § 9-602(a)(3) at most offers some additional confirmation that average weekly wage should represent what the employee "would earn" under the employment contract existing at that time of the injury ( Crowner v. Balt.

United Butchers Ass'n , 226 Md. at 610 , 175 A.2d 7 ), which is not necessarily identical to what the employee had "earned" immediately prior to the injury. See Campbell Coal Co. v. Stuby , 159 Md. at 287 -88 , 150 A. 878 . RBCI and its insurer point out that the Act should not be construed to permit an employee to "receive more compensation by being injured than by working." Long v. Injured Workers' Ins. Fund , 448 Md. at 292, 138 A.3d 1225 .

In other words, an employee should not "receive a windfall for being injured." Id. at 298 , 138 A.3d 1225 . They note that "an average weekly wage of $758.00 results in a weekly compensation rate of $506.00[,]" and that Mr. Wagstaff "never earned more than $454.80 in a week while working for [RBCI]." They assert that the Commission's award "makes it more profitable for [Mr. Wagstaff] to be injured than to be working." This argument depends on the premise that the six weeks in February and March, in which Mr. Wagstaff never worked more than three days per