Hello there dear readers! I hope everyone is staying safe, washing their hands, and hoarding as much toilet paper as humanly possible.  In the meantime, since we’ve all decided to shelter in place, limit social interaction, and revel in the bitter-sweet euphoria that is working from home while all the schools are closed, let me provide a bit of distraction by something completely unrelated to Corona Virus – reasonable commuting distance!

That’s right, dear readers – California Code of Regulations section 10133.34 provides that regular, modified, or alternative work must be a “reasonable commuting distance” from the employee’s residence at the time of injury.

Well, in chatting with one of the gentle giants of workers’ compensation the other day, he raised this issue and had your humble blogger stumped: what constitutes a “reasonable commuting distance”?

Now, you might wonder why this is so important, but let’s not forget this is more than litigation over a $6,000 voucher: this is the opportunity to terminate temporary disability benefits and avoid the obligation to estimate and make PD advances!  As is the case with a flying cow – the stakes/steaks are high!

So, without the benefit of legal research, your humble blogger had a few initial thoughts:

1. Anything that is the same distance as applicant’s pre-injury location from his or her home would be a reasonable commuting distance;
2. Since California Labor Code section 4658.1 allows the modified work to pay as little as 85% or the pre-injury wages, I would submit at least a 15% increase in commuting distance from the pre-injury commute would likewise be reasonable;
3. A general survey of commuting conditions in the area should be taken into account – if it is typical for employees to commute one hour each way (or 45 miles each way) in the surrounding counties, then it should not be unreasonable for applicant to be required to go with the [traffic] flow.

Subsequently, your humble blogger decided to see if any panel cases touched on this.  Sure enough, I found the case of Perry v. Direct TV, a 2016 panel decision (remember 2016, dear readers?  I sure do. In the somber words of Andy Bernard, “I wish there was a way to know you’re in ‘the good old days’ before you’ve actually left them.”)

Applicant lived about 35 miles from his office location in Manteca.  That location had policies restricting the use of company vehicles for personal trips and also required all “light duty” modified work employees to leave the vehicles on company property, rather than use them to commute home.  As a DirectTV employee, applicant regularly went from location to location in his work vehicle, only occasionally coming to the Manteca office to restock or receive training.

After applicant sustained an industrial injury, he was offered light duty at the Manteca office which would not require a company vehicle.  But therein lies the rub – he had no vehicle of his own.

The parties proceeded to trial on, essentially, the sole issue of whether the light duty offered at the Manteca office qualified as a reasonable commuting distance given that applicant had no transportation of his own.

Well the WCAB ordered further development of the record, rescinding the WCJ’s award of temporary disability benefits.  On retrial, the WCJ again found applicant entitled to TTD benefits (presumably finding the offer of modified work as invalid due to the commuting issue).  As summarized by the panel, “the WCJ reasoned that an offer of light work without the continued use of a company vehicle made to an employee that had never required a personal vehicle due to the employer’s provision of a company vehicle was not a valid offer of light work.”

The WCAB concurred, although limiting its decision to this set of circumstances.

But what are we to take from this?

Well for one thing it pointed to a helpful case for this issue.  Tuivai v. Links Electrical Service (2015 Panel Decision) held that since applicant’s regular duties required long distance travel on a regular basis to various job sites, continued long distance travel as part of modified work was within reasonable commuting distance.  There, no specific distance was necessary – just the fact that applicant traveled long distances already.

Also, we can look at the Perry case in terms of pre-injury and post-injury change.  In this case, applicant’s pre-injury work provided him with transportation to do his job (although it was going to client homes/offices rather than the main office).  The light duty not only took away his company transportation, but would have imposed the burden of commuting on applicant (whether in cost for public transportation or car purchase/rental).  In fact, the value of the company transportation likely could have factored into the average weekly wage calculation.

In other words, like with all legal inquiries, the answer is going to be “it depends.”  It depends on the facts of the case and the impact the injury has had on applicant.  If the injury results in a loss of access to transportation, that’s probably going to affect what’s “reasonable” for a proposed commute.

Here is another consideration – there are places in California where driving 20 miles to the East takes 30 minutes, but driving 20 miles to the West might take 90 minutes.  Since the regulations provide for a reasonable commuting distance, do we factor in the time spent in the commute or just the miles?  Likewise, if modified work is farther away in terms of distance but a shorter commute in terms of time, is it still “reasonable”?

If this has distracted you, dear readers, then I regard my job is well done. 

Stay safe out there!

Happy Monday, dear readers!

So … you’ve looked everywhere for guidance on Corona Virus, and you ended up coming back here.  Accordingly, please allow Dr. Humble Blogger (remember, I did take Remedies in law school) to impart some wisdom upon you – you’re not going to catch Corona Virus because you chose to eat lunch at a Chinese food restaurant instead of a Sushi restaurant; you’re not going to catch Corona virus because you drank Corona Beer instead of Guinness;  and, most importantly, if you’re going to Costco to stockpile toilet paper and hand sanitizer, but you’re still eating the samples being given out in the store, I think you might be missing the point.

In any case, there’s a whole lot of inquiry about whether workers’ compensation is going to get dragged into the Corona Virus panic.  I would respectfully refer my beloved readers to a prior blog post on the flu in general – the rule that governs the inquiry is not whether someone who happens to have a job also happened to catch the flu (or Corona Virus) but rather, whether the job increases the danger of exposure to the injured worker more so than is visited upon the general public.

Since we’re in the spirit as it is, let’s take a look at the case of Leggette v. CPS Security, a panel decision issued in January of this year.

Now this one doesn’t have to do with Corona Virus, but it does have to do with West Nile (remember when that was the big pandemic?)  Applicant worked as a security guard at a construction site.  At that location, there was standing water on two sides of the construction site, and applicant saw and heard mosquitos.  He also felt them bite him on a daily basis!

On the alleged date of injury, he went home and the next morning (as per his testimony) he remembers putting on his pants and… that’s it.  He woke up a week later in the hospital, and was told he had contracted West Nile Virus.

Applicant alleged a specific injury and sought benefits but the AOE/COE trial resulted in a take-nothing, reasoning that applicant could produce no evidence of a mosquito bite on the date as alleged (his last day worked).

The WCAB reversed, equating the mosquito bite that gave rise to the West Nile Virus to an occupational disease, in that the “symptoms are latent after exposure.”   The panel concluded that “[t]he WCJ erred in finding that applicant had to specify the exact date that he was bitten by the infected mosquito… [r]equiring an injured worker to know the exact date of exposure in a case like this one would be nearly impossible.”

So based on this case, it is sufficient for an applicant to show that there was probable exposure to the condition as a result of work activities.  Notice, however, what the injured worker is NOT required to show:

1. The specific date on which he believes he was exposed  or on which particular date a mosquito bite resulted in exposure; and
2. That the mosquitos near his workplace actually carried the West Nile Virus.  Remember dear readers, there are plenty of perfectly healthy mosquitos out there that are annoying but not carriers of WNV.  However, it does not appear that any testing was required to show that the mosquitos infesting applicant’s worksite actually carried the virus.

Bringing this back to the Corona virus though – the news reports your humble blogger has seen seem to suggest that infection is nearly everywhere.  Previously recovered patients seem to get re-infected, and a huge swath of the population, though infected, shows no symptoms at all.

As low as the bar appears to be for workers to claim that their infection was work related, defendants should have a counter argument about the inability of an applicant to carry his or her burden in proving exposure at work as well as a result of work (AOE and COE).

What about you, dear readers, have you had this come up yet?  If so, drop me a line and share your experience.

Alright, dear readers, let’s talk, just for a minute, about Vouchers!

Sometime ago, in the WorkCompCentral forums, a question was raised about vouchers, and the employer’s obligation to provide one.  This might seem like a small point – the $6,000 in potential exposure, but it adds up and quickly.

Depending on internal claims handling procedures, an issued but not exhausted voucher can even slow down when a file can officially be “closed.”

The forum question essentially asked – if the injured worker comes back to work, is a voucher due?

So, what does the law say?  Labor Code section 4658.7 provides that “if the injury causes permanent disability, the injured worker shall be entitled to a supplemental job displacement benefit … unless the employer provides an offer of regular, modified, or alternative work, as defined in Section 4658.1…”  The offer must be made within 60 days of receiving a P&S report and the offer is for work lasting at least 12 months.   As per section 4658.1, the pay offered must be at least within 85% of the pre-injury wages.

Now, before SB-863 went into effect, Labor Code section 4658(d) provided that absent a notice of offer of regular, modified, or alternative, “in the form and manner prescribed by the administrative director” the employee was entitled to a 15% increase in permanent disability.  SB-863 changed the incentive structure for an employer to make an offer of regular, modified, or alternative work, from a 15% decrease in PD to not having to make advances or providing a voucher.

But pre-SB-863, sometimes employers would bring back an injured worker but still get hit by the WCAB if the employer failed to use proper form.  However, now employers are no longer required to use a specific form to offer work – the wording “in the form and manner prescribed by the administrative director” doesn’t apply to the “offer” anymore. 

Furthermore, and this gets to the forum question on WorkCompCentral, California Code of Regulations section 10133.31(c) provides that “if an employee who has lost no time from work or has returned to the same job for the same employer, is deemed to have been offered and accepted regular work in accordance with the criteria set for in Labor Code section 4658.7(b).” 

In other words, at least by your humble blogger’s estimation, a voucher is not due if the injured worker returned to the same job for the same employer or last no time from work.  The voucher should also not be due if the offer was made, even without using the form, but a letter should suffice (if not a phone call). 

Now, on more than one occasion, I’ve tried to walk through settlement only to have a WCJ inquire where the old form is to avoid liability for a voucher.  Fortunately, section 10133.31 has saved the day on more than one occasion when the injured worker has returned to work.

What about you, dear readers – have you had any such luck, or do you still use the old form?

Happy Monday, dear readers!  Did you miss me?  I kept wanting to write a new blog post for you, but each time I got started a new e-mail would come in commending me on Mr. Chris Pratt’s face on the front page and asking me not to take it off.  Well, the time has come, dear readers, to move on to the next big thing.

Have you ever mentioned to someone that you are in the world of workers’ compensation, only to be peppered by employment law questions?  Well, get ready for a little bit of that.

The California Supreme Court issued an opinion this month in the case of Frlekin v. Apple Inc.  Therein, the Supreme Court held that “time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’.”

If this sounds familiar, perhaps you recall this earlier blog post by your humble blogger.

So what’s the set-up?  Apple requires employees to go through security checks on their way out, whether at the end of their shifts or if they are just going out for break.  This allows Apple to make sure none of its dedicated employees have had products normally for sale “accidentally” fall into their bags.  This is a method of preventing “shrinkage”, loss, or employee theft (however one might call it).

But, understandably, the budget for security in this sense is limited, so employees often find themselves waiting for extended periods of time just to pass through the security and leave.  Well the issue at hand is whether that time spent going through security is “work” or “not work.”

The Supreme Court decided that it is work.  So, time spent in security check points is compensable for wages, affects average weekly wages, and any injuries sustained while going through security would likely be compensable as well. 

So what does that mean for us, dear readers?  What are we, the brave denizens of workers’ compensation, to make of this ruling from the Supreme Court?  Well, there’s nothing good in this, that’s for sure!

In my estimation, at least, this opens the door for a wide spectrum of activities undertaken to comply with an employer’s procedures.  Workers’ can make the argument that time spent in compliance with basic procedures that would logically fall under the “going and coming” rule and exclude compensability are now part of the work day. 

We’ll see, of course, how this ultimately plays out, but perhaps we can look forward to colorful theories being advanced about why the employer putting a nametag on at home before leaving for work is part of the work day, or why the injured worker’s commute-related injury is industrial because he was thinking about work when he T-boned a third party.

At least we won’t be bored, right?

It’s Wednesday, dear readers, and your humble blogger brings to your attention a case that is distinct for two very important reasons.  The first is that the opinion reflects the WCAB’s intention to affirm its prior En Banc decision.  The second, which is only important to WC nerds like myself, is that this case has the distinction of being the first reported by Lexis for this decade.  In fact, the citation itself is 2020 Cal. Wrk. Comp. Lexis 1.

Now, onto the case itself – Dennis v. State of California.  The WCAB held that Rule 10133.54, which provides that parties make refer their disputes regarding SJDB vouchers to the administrative director, was invalid as conflicting with Labor Code section 5300, which holds “the following proceedings shall be instituted before the appeals board and not elsewhere…” including “the recovery of compensation, or concerning any right or liability arising out of or incidental thereto.”

It further held that “an employer must show that it made a bona fide offer of regular, modified, or alternative work in order to avoid liability for a [voucher].”

In the Dennis case, following an admitted injury sustained by an inmate laborer, the employer sent an notice of offer of regular, modified, or alternative work which offered work contingent upon applicant showing he was eligible to accept the position, which he, of course, was not: he had been released from incarceration!

The Administrative Director did not respond to the request for dispute resolution, so applicant filed a DOR and went before the WCAB.  The trial judge held that the appeal of the Administrative Director’s presumed decision was not timely and that he was not entitled to the voucher.  Upon appeal, however, the WCAB granted reconsideration, concluding that applicant was entitled to the voucher. 

With respect to the WCAB’s holding that the regulation allow the administrative director to hear disputes about vouchers, I don’t think it has that much of an impact.  Yes, it removes one more hoop applicants have to go through to pursue the voucher, but since the determination of the administrative director would be appealed to and heard by the WCAB in any case, vesting decision-making power with a WCJ doesn’t add much to the calculations.

However, the other ruling, that a “bona fide” offer of work has to be made to avoid liability for the voucher… that’s something else.  The WCAB interpreted Labor Code section 4658.7(b), which states in pertinent part “[i]f the injury causes permanent partial disability, the injured employee shall be entitled to a [SJDB Voucher] … unless the employer makes an offer of regular, modified or alternative work…” to read in the words “bona fide” or “good faith” into the language of the statute. 

As an aside, if we’re going to require parties in workers’ compensation matters to act in good faith, can we please require pleadings to be made in good faith as well?  How many times, dear readers, have you had an applicant’s attorney dissatisfied with your spine QME, suddenly claim a CT to get another bite at the apple? Your humble blogger is aware of zero consequences to the applicant or the applicant’s attorney for filing baseless cumulative trauma claims, costing thousands of litigation dollars and needless driving up employer x-mods.  Feel free to show me the error of my ways.

In footnote 19 of the Dennis decision, the WCAB cites authority to define good faith as “genuine” or “made with earnest intent.”   Accordingly, the fact that the employee cannot accept an offer of work because he is no longer incarcerated is not a defense to providing a voucher.  Defendant was then ordered to provide a voucher to applicant.

In discussing this case with reader W.A. (which WC nerds such as your humble blogger tend to do)several hypotheticals came up, all which centered around one fact: a change in circumstance completely unrelated to the industrial injury: The loss of a professional license; geographic limitations (such a domestic violence restraining order from a co-worker); discovery of immigration status issues post-injury.

Or, to reverse the Dennis case facts – what happens when applicant cannot accept the job because he has become incarcerated?

Labor Code section 4664 provides that “the employer shall only be liable for the percentage of permanent disability directly caused by the injury…”, but a SJDB voucher is not permanent disability.

What about a different approach?  In Dennis, the employer made the offer of work “subject to applicant verifying they are lawfully qualified to accept employment…”  What if the offer did not have any qualifications, but a termination for cause followed failure to present to the job?  When the applicant cannot report for work in the prison because he cannot get through the front gate, then the employer proceeds with termination for job abandonment.  When an attorney shows up for work but has been disbarred, a termination of employment follows. 

The problem with this approach is, of course, that not only does it run the risk of having the WCAB rule that the “offer” was not valid if the employer knew or should have known that the injured worker could not accept, the employer also runs the risk of 132a exposure.

Having handled a few 132a cases myself, I can attest that more than once I’ve heard employers tell me “we didn’t fire him because he had an injury at work, we fired him because he lied about having a workers’ comp injury!”  As you can imagine, that line of reasoning doesn’t do too well when we get down to trial. 

Maybe someone will decide to run the gauntlet and try this theory out?  If you are that brave soul, dear reader, please don’t forget to let your humble blogger know how it goes: I’ll be happy to broadcast your success or lament your failings on this most humble of blogs.

Happy Monday dear readers! And truly, a happy Monday it is.  California workers’ compensation can often make us sad, but there’s so much reason to rejoice, especially when, on those rare occasions, the stars align, the tea leaves land in just the right way, and just for a split second… the world makes sense again.

What brings about this irrationally optimistic mood in your most humble of bloggers?  Well, recently the Court of Appeal (4th Appellate District, unpublished) ruled in the case of Kennedy v. MUFG Union Bank, that a voluntary resignation as part of a workers’ compensation settlement warranted summary judgement in her civil claim alleging wrongful termination.

The unpublished decisions (and remember folk, unpublished opinions in California are like bus tours without windows: no cites!  That is, no citing on unpublished opinions) held that evidence of a voluntary resignation letter “was sufficient to negate any claims premised upon the existence of a termination, as it showed that plaintiff was not terminated and instead voluntarily resigned her employment with Union Bank.”

So, while we are now precluded from enforcing contracts that agree that there will not be any re-hiring, the resignation letter still holds to negate any civil claims predicated upon a theory that requires a termination.

Hypothetical for you, dear readers: Employer terminates the employment of Employee on a basis that would otherwise give rise to a civil suit; Employee pursues a civil suit for the termination while also pursuing a workers’ compensation claim; Employee settles the workers’ compensation claim with a voluntary resignation letter while the civil suit is still in its discovery stage; does the voluntary resignation now negate the civil suit?  Does it matter if the voluntary resignation was signed after the alleged wrongful termination?

In Kennedy, applicant’s position was eliminated, and she signed a resignation letter as part of her C&R after that fact.  If Kennedy is offering guidance, then it looks like a voluntary resignation in a workers’ compensation claim is fatal to a civil claim based on a theory of wrongful termination of employment.

Even if no civil suit is pending, perhaps it is worthwhile to explore an injured worker’s willingness to sign a resignation letter and for the parties to go their separate ways, if for no other reason to nip any potential claims in the bud.

Now, hopefully, dear readers, we will see Kennedy published before too long, because common sense reasoning and results merits attention and authority.  In the meantime, your humble blogger will be humming “happy happy joy joy” all the way to the WCAB.

Some of my beloved readers may recall an HBO cop drama called “The Wire.”  The show focused mostly on the difficulty of prosecuting a drug war in Baltimore against the backdrop of organized crime, poverty, corruption, and complacency among career city and state employees.

One character on that show, detective Roland “Prez” Pryzbylewski, had a general reputation for incompetence, despite a rising career thanks to a high-ranking father-in-law.  Bear with me, dear readers, I draw nearer to my point.  One of the stories following detective Pryzbylewski is that he accidentally managed to shoot his own car, and then claimed that he was fired upon by snipers, a ridiculous story which lead to him being mocked regularly by his co-workers.

Silly, right?  Who in their right mind would claim being under sniper fire?!?  Save that nonsense for screen… unless…?

Well, at least one person thought it might be a good idea to do just that, and he is NOT a fictional character.  Former Los Angeles County sheriff’s deputy Angel R. Reinosa claimed to have sustained sniper fire while leaving a sheriff’s station in 2019.  He filed a workers’ compensation claim that didn’t last long in the face of an investigation showing that… nothing.  NOTHING happened.

Now mind you, dear readers, the ceiling and floor have both fallen out of this story if the Sheriff’s Department’s version of the facts is correct.  Not only is this a sworn peace officer who is allegedly engaged in insurance fraud, but we’re not even talking about exaggerating the impact of a back strain or claiming a non-industrial injury occurred at work. 

As always, the damage done by these allegations, if true, extend beyond the cost of adjusting a workers’ compensation claim.  If the deputy is convicted of this sniper hoax, as the Sheriff’s Department has labeled it, what other “hoaxes” did the deputy perpetrate while wearing a badge?  Are there convictions that now need to be reexamined, and possibly re-tried, to see if the conviction can stand without the contributions of former-Deputy Reinosa?

Will the next law enforcement officer to claim a legitimate industrial injury face unwarranted suspicion?

Your humble blogger hopes that the truth (and justice) will speedily be reached in these proceedings.

First off, dear readers, a very happy Martin Luther King Jr. day to one and all.

But speaking also about workers’ comp for those stuck at work today…

As a new week opens up, the world of California workers’ compensation continues to rock and sway from the start of the new decade. 

Among the topics coming up with some regularity is AB-5.  Several industries are valiantly trying to stop some or all of its implementation through the courts.  Meanwhile, there is at least some stirring of activity in Sacramento trying to blunt at least some of the impact of AB-5, which raises the bar almost insurmountably for retaining an independent contractor rather than, often unwillingly, hiring an employee. 

Assembly Bill 1925 has been introduced by Assemblyman Jay Obernolte to limit the application of AB-5 and create an exemption for small businesses.  AB1925 would define a “small business” as independently owned and operated, not dominant in its field of operation, having fewer than 100 employees, and have an average of gross receipts at $15 million or less for the previous three years. 

The bill was just introduced about a week ago, so it’s going to take some time for it to be considered by the legislature, let alone voted upon or signed by the Governor.  However, your humble blogger, high upon his soap box, highly endorses any movement into freeing up businesses and workers to make their own contracts and agreements. 

Please bear in mind, dear readers, as good as it might have felt for the folks in Sacramento to strike a blow against “evil” UBER, the fall-out from AB-5 has not been a feather in anyone’s cap.  I’m sure the attorneys litigating this in the courts are laughing all the way to the bank from the billable hours involved, but the news has also included freelance journalists being laid off.   Accordingly, any reduction in the legislation’s scope is gain. 

Here’s hoping AB1925 will see swift review and approval by Sacramento!  

Well, dear readers, that was fast!

The Honorable Judge William Highberger, a Los Angeles judge, ruled that AB-5 does not apply to independent truck drivers because they are subject to a federal statute.  AB-5 is California’s latest attempt to make it harder for businesses and free-lancers to agree to independent-contractor arrangements rather than conventional employment.

Anyone who was near the WCAB in San Francisco in December might recall the flood of volume from truck drivers protesting the law that sought to force them to stop being independent operators and into being employees instead.

Judge Highberger ruled that AB-5 is preempted by the Federal Aviation and Administration Authorization Act of 1994.

Other industries and groups are also suing to challenge AB-5.

So what does this mean for us, dear readers?  If the only thing keeping you from raising an independent contractor defense to AOE/COE is AB-5, then perhaps it is worth it to raise the defense with the intent of testing AB-5s validity.

There is a lot in flux right now and it’s not clear where the chips will fall, where the dust will settle, or where [pick your favorite proverb]. 

As for your humble blogger, I propose a law which allows contractors to declare their independence loudly and firmly, not unlike the legendary Michael Scott did with respect to bankruptcy:

Happy Monday, dear readers!

You know your humble blogger is well aware that with AB5 we might see the last days of UBER and Lyft – you know, those ventures that brought extra money and flexibility to drivers while making the rate of DUIs plummet in every city where they operated.

However, assuming just for a while that we still have to deal with those cases where an allegedly injured worker was taking advantage of the gig economy to make money while not working for the defendant, how do we calculate average weekly wages?

So let’s take this hypothetical: worker sustains an admitted injury (specific) while working for his employer.  The treatment leads to surgery and applicant is taken completely off work.

Calculating the average weekly wages for the employer is easy enough, but what do you do when the worker also demands his UBER earnings?

This came up once in your humble blogger’s practice (you guys know that, at least until State Bar of California comes to its senses, I’m allowed to practice law and stuff, right?) with applicant claiming his average weekly wage should reflect all his deposits from his gig economy shift.

But… that’s not really how this works, right?  After all, if applicant was selling used cars for $10k each, but each car cost him $7k to buy for re-sale, he would only be earning $3k per car, not $10k per car (along with whatever other expenses he had).

On the other hand, applicant has expenses associated with his day job as well: laundry costs related to clothing, transportation costs for the commute, possibly licensing costs associated with doing his job.  So what’s the proper measure?

The Court of Appeal considered a similar issue back in 1995 – and no, this was not an UBER or Lyft case.  In the matter of Hupp v. WCAB (39 Cal. App. 4th 84) the Court of Appeal held that when the injured worker engages in self-employed activity, it is the net, not the gross income that is contemplated in calculating supplemental income.

More recently, the appeals board held in Mack v. Atlas Van Lines (2009 Cal. Wrk. Comp. PD Lexis 529) that in calculating average weekly wages, it is also the net and not the gross earnings that count.

But what deductions can you take to reduce the income?  Well, that depends on the nature of the job.  Odds are that the estimates are going to be rough.  Auto insurance, gas, cleaning costs on the car, and any permits or license fees may be considered.

What do you think, dear readers?  Have you encountered injured workers claiming lost gig-economy income as part of their average weekly wages?