By: Richard Clark, Of Counsel, Nashville

In July of 2016, the Tennessee Workers Compensation Appeals Board (Docket Number 2015-01-0147) issued a ruling of first impression in “Marshall v. Mueller Company.” In its decision, the Appeals Board analyzed the application of T.C.A. 50-6-207(3)(B)(2015), by defining “wage” under the Post-2013 Workers Compensation Reform Act when determining whether an employee returns to work at the same or greater pre-injury wage. Pursuant to case law that analyzed the definition of “wage” prior to the 2013 Reform Act, an employee’s “wage” meant their hourly rate of pay and not necessarily their Average Weekly Wage.  While the Appeals Board in Marshall also provides an informative history of the “multiplier cap” analysis that existed prior to the 2013 Reform Act, for purposes of this article, their analysis of an employee’s “wage” Post-2013 Reform Act is most relevant. Ultimately, the Appeals Board in Marshall adopted the Pre-2013 Reform Act analysis by reemphasizing that “wage” means the hourly rate of pay. The Board reiterated that pay incentives such as bonuses, etc. would not factor into an employee’s “wage” when determining whether or not the employee returned to work at the same or greater pre-injury wage. 

In analyzing the above issue, the Appeals Board in Marshall noted that T.C.A. 50-6-207(3)(B) enables an employee to file a claim for increased Permanent Partial Disability benefits “[i]f at the time the period of compensation provided in subdivision (3)(A) ends, the employee has not returned to work with any employer or has returned to work and is receiving wages or a salary that is less than one hundred percent (100%) of the wages or salary the employee received from his pre-injury employer on the date of injury.” The 2013 Reform Act does not define “wages” as used in T.C.A. 50-6-207(3)(B)(2015), nor did earlier provisions of the Tennessee Workers’ Compensation Act define “wages.” The Tennessee Supreme Court first addressed the term “wage” in the context of temporary disability benefits, holding that the terms “wage” and “Average Weekly Wage” are not synonymous. Wilkins v. The Kellogg Co., 48 S.W.3d 148, 152-53 (Tenn. 2001). Based on the holding in Wilkins, the Supreme Court subsequently determined that the term “wage” as used in T.C.A. 50-6-24l(a)(l) did not mean “Average Weekly Wage”; rather, it “means the hourly rate of pay for an employee who is compensated on an hourly basis.” Powell v. Blalock Plumbing & Elec. & HVAC, 78 S.W.3d 893, 898 (Tenn. 2002).

In Marshall, the Appeals Board explained their analysis further by iterating that the Board considered Pre-2013 Reform Act statutory provisions and case law concerning the meaning of “wage.” The Appeals Board also considered the 2013 Reform Act’s deletion of T.C.A. 50-6-241(a) and (b), the revised method of calculating Permanent Partial Disability benefits in the 2013 Reform Act, and the Reform Act’s conditioning an employee’s entitlement to increased benefits at the end of the original compensation period upon the employee’s “receiving wages or a salary that is less than one hundred percent (100%) of ‘the wages or salary the employee received from the pre-injury employer.” In view of the historical context in which “wages” came to be defined, the Board found it significant that the General Assembly did not define “wages” as used in T.C.A. 50-6-207(3) or otherwise indicate a different meaning of “wages” than has been established in prior opinions. The Appeals Board went on to explain that the rules and regulations adopted by the Bureau of Workers’ Compensation both before and after the effective date of the 2013 Reform Act did not define the term. Accordingly, the Board found the language in T.C.A. 50-6-207 suggests that the interpretation applied under the Pre-2013 Reform Act would continue to be applicable to Post-2013 Reform Act cases. If you have any questions, please feel free to contact our Nashville office to review the specific facts of your case.