48-126. Wages, defined; calculation.

Wherever in the Nebraska Workers' Compensation Act the term wages is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. It shall not include gratuities received from the employer or others, nor shall it include board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring, except that if the workers' compensation insurer shall have collected a premium based upon the value of such board, lodging, and similar advantages, then the value thereof shall become a part of the basis of determining compensation benefits. In occupations involving seasonal employment or employment dependent upon the weather, the employee's weekly wages shall be taken to be one-fiftieth of the total wages which he or she has earned from all occupations during the year immediately preceding the accident, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not fairly represent the earnings of the employee. In such a case, the period for calculation shall be extended so far as to give a basis for the fair ascertainment of his or her average weekly earnings. In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour or by the output of the employee, his or her weekly wages shall be taken to be his or her average weekly income for the period of time ordinarily constituting his or her week's work, and using as the basis of calculation his or her earnings during as much of the preceding six months as he or she worked for the same employer, except as provided in sections 48-121 and 48-122. The calculation shall also be made with reference to the average earnings for a working day of ordinary length and exclusive of earnings from overtime, except that if the insurance company's policy of insurance provides for the collection of a premium based upon such overtime, then such overtime shall become a part of the basis of determining compensation benefits.

Source

Annotations

1. Seasonal employment

2. Continuous employment

3. Board and lodging

4. Miscellaneous

1. Seasonal employment

Seasonal employment refers to occupations which can be carried on only at certain seasons or fairly definite portions of the year, and does not include such occupations as may be carried on through the entire year. Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).

Employment for handling and delivery of coal for retail coal dealer was not seasonal employment. Hogsett v. Cinek Coal & Feed Co., 127 Neb. 393, 255 N.W. 546 (1934).

Seasonal refers to occupation ordinarily performed in certain seasons. Lincoln Gas & Electric Light Co. v. Watkins, 113 Neb. 619, 204 N.W. 391 (1925).

Work of caretaker of club house was not seasonal. Dietz Club v. Niehaus, 110 Neb. 154, 193 N.W. 344 (1923).

2. Continuous employment

Deceased was not engaged in continuous employment where he was a truck driver hired on a per trip basis and employer was under no obligation to rehire deceased after each trip. Loeffelholz v. Allied Mut. Ins. Co., 183 Neb. 112, 158 N.W.2d 219 (1968).

Employment was continuous where employee was hired to work one day each week. Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165 (1956).

Bridge building is not seasonal employment. Gorham v. Peter Kiewit Sons Co., 129 Neb. 277, 261 N.W. 353 (1935).

Where employee had been employed for a period of several months on the basis of a weekly salary, and shortly before accident his salary was changed from a weekly to hourly basis, rule of continuous employment should be applied. Mutchie v. M. L. Rawlings Ice Co., 122 Neb. 297, 240 N.W. 267 (1932).

3. Board and lodging

Allowance for board and lodging must represent a reasonably definite economic gain to the employee before it can be considered as wages. Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212 (1949).

Where money value of board, lodging, and washing furnished to employee is fixed at time of hiring, it is considered as part of wages in determining amount of compensation due. City of Omaha v. Casaubon, 138 Neb. 608, 294 N.W. 389 (1940).

Cost of meals and lodging furnished employee by employer under agreement made at time of hiring was part of such employee's wages hereunder. Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797 (1932).

4. Miscellaneous

When an employee paid by the hour suffers a work-related injury that results in permanent injury or death, the employee’s average weekly wage is calculated by multiplying the rate of wages by a 40-hour workweek rather than by averaging that employee’s actual wages over the 6 months before the accident. Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

The language "ordinarily constituting his or her week's work" precludes an automatic mathematical calculation based on the past 6 months' work; the goal of any average income test is to produce an honest approximation of the claimant's probable future earning capacity. Mueller v. Lincoln Public Schools, 282 Neb. 25, 803 N.W.2d 408 (2011).

Where the worker has insufficient work history to be able to calculate his or her average weekly income based on as much of the preceding 6 months as he or she worked for the same employer, then what would ordinarily constitute that employee's week's work and, thus, that employee's average weekly income should, if possible, be estimated by considering the preceding 6 months of other employees working similar jobs for similar employers. Powell v. Estate Gardeners, 275 Neb. 287, 745 N.W.2d 917 (2008).

In determining the average weekly wage, those weeks which are abnormal may be excluded from the 26 weeks preceding the accident. Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990).

Money amounts negotiated between a union and employers based on hours worked by union member employees and to be paid directly to the union to cover such things as health and welfare and pensions are not to be included within the term "wages," unless the money value of such advantages to the employee has been agreed upon and fixed by the employer and employee at the time of hiring. Briggs v. Consolidated Freightways, 234 Neb. 410, 451 N.W.2d 278 (1990).

Money amounts negotiated between a union and employer based on hours worked by union member employees and to be paid directly to the union to cover such things as health and welfare and pensions are not to be included within the term wages, unless the money value of such advantages to the employee has been agreed upon and fixed by the employer and employee at the time of hiring. Schlotfeld v. Mel's Heating & Air Conditioning, 233 Neb. 488, 445 N.W.2d 918 (1989).

Where decedent is unable to work for employer during the six months preceding his death, his wages are calculated by his earnings during as much of the last six months that he worked. Clifford v. Harchelroad Chevrolet, 229 Neb. 78, 425 N.W.2d 331 (1988).

Wages are to be computed according to the contract of hire in force at the time of the accident. Hayes v. A.M. Cohron, Inc., 224 Neb. 579, 400 N.W.2d 244 (1987).

Base figure in calculating award is the wage in force at the time of the accident. Chadd v. Western Cas. & Sur. Co., 166 Neb. 483, 89 N.W.2d 586 (1958).

Employee hired for a day at a time six or seven times a month was entitled to have compensation based on the money rate at which service was recompensed. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948).

Wages under the Workmen's Compensation Act are to be computed according to the terms of the contract of hiring in force at the time of the accident. Redfern v. Safeway Stores, Inc., 145 Neb. 288, 16 N.W.2d 196 (1944).

Where employment is not continuous, calculation of wages should be made at the money rate at which the service rendered is recompensed. Weitz v. Johnson, 143 Neb. 452, 9 N.W.2d 788 (1943).

Where employment is not seasonal and not continuous, compensation must be based upon the contract of hiring in force at the time of the accident. Cole v. M. L. Rawlings Ice Co., 139 Neb. 439, 297 N.W. 652 (1941).

Term wages is construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, where employment is neither seasonal nor continuous. Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283 N.W. 220 (1939).

Receipt and acceptance of workmen's compensation by city fireman does not bar him from receiving fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

Wages should be computed ordinarily according to the terms of contract of hiring in force at the time of the accident. Drum v. Omaha Steel Works, 129 Neb. 273, 261 N.W. 351 (1935).

Compensation claimant's employment was not continuous, or seasonal, or dependent upon the weather, and, therefore, first sentence of this section governs wages. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928).

In this section, the Legislature dealt with the possible inequity that could result from abnormally high work weeks in the context of average weekly wage calculations. Arbtin v. Puritan Mfg. Co., 13 Neb. App. 540, 696 N.W.2d 905 (2005).

Payments to an employee are included in an employee's wage if the payments do not constitute actual reimbursement for actual incurred expenses, but, rather, represent real and definite economic gain to the employee. McGinnis v. Metro Package Courier, Inc., 5 Neb. App. 538, 561 N.W.2d 587 (1997).

Employer may not reduce average weekly wage by amount of "road allowance" included in wages unless such allowance was agreed upon at the time of hiring and did not represent a real and reasonably definite economic gain to the employee. Logan v. Rocky Mountain Rental, 3 Neb. App. 173, 524 N.W.2d 816 (1994).