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Kollock v. Allen Harim Foods, LLC, C.A. No.: S14A-06-002 (Del. Super. Oct. 7, 2014).

The Superior Court holds that there is no reason to distinguish between “probationary” and “regular” hourly rates in calculating average weekly wage for an employee who worked for eighteen weeks before she was injured at work.

The claimant, Gertrude Kollock, worked for 18 weeks prior to being injured in a compensable industrial accident on September 7, 2012. The employees at her employer are covered by a collective bargaining agreement. For the first 90 days of the claimant’s employment, she was considered a “probationary” employee and paid $8.20 per hour. After the 90 day probationary period, she became a “regular” employee and her hourly rate increased to $10.00 per hour. Additionally, following her graduation to regular employee status, the claimant could only be terminated for cause under the collective bargaining agreement. However, her job duties remained the same during the entirety of her eighteen week pre-injury employment.

Since the claimant had worked less than 26 weeks, but more than 13 weeks, the Board found that 19 Del. C. § 2302(b)(1) was applicable and used all 18 weeks worked to calculate her average weekly wage. The claimant appealed and argued that the Board should only consider her hourly rate that she received once she became a “regular” employee in calculating her average weekly wage. The employer argued that the Board was correct and that the claimant’s wages from the entire 18 week period should be used to calculate average weekly wage.

The Superior Court found that 19 Del. C. § 2302(b)(1) clearly and unambiguously provides that the claimant’s total wages over the 18 weeks she worked are to be divided by 18 to arrive at the proper average weekly wage. It observed that “while it is true that a ‘regular’ employee has more rights under the collective bargaining agreement than a ‘probationary’ employee that is irrelevant.” According to the plain language of the statute, there is no reason to differentiate between a “probationary” employee and a “regular” employee for purposes of calculating average weekly wage under these circumstances. The Board’s decision was affirmed.

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