Average Wage Calculation Must Be Computed For Nevada Self-Employed FedEx Driver

The lack of a salary associated with typical employment does not necessarily prevent an average monthly wage calculation for a self-employed injured Nevada worker, held the state’s Supreme Court last Thursday [Mensah v. CorVel Corp., 2015 Nev. LEXIS 64, 131 Nev. Adv. Rep. 60 (Aug. 6, 2015)]. Reversing a district court order denying a petition for judicial review in a workers’ compensation case, the Court held that the calculation should be based upon the injured worker’s earnings, which include more than just the worker’s salary, and should take into consideration a self-employed individual’s business profits and expenses.

Background

Mensah was a self-employed delivery driver who contracted with FedEx Home Delivery for one of its delivery routes. Under his service contract, he was required to maintain workers’ compensation insurance. While delivering packages, Menash fell and injured his shoulder. His workers’ compensation claim for his shoulder injury was accepted, and he received medical treatment. He was later released to light-duty work, but with his physical restrictions, he could not complete his delivery route and instead hired a replacement driver until he canceled the service contract. Mensah requested TD benefits, which were denied on the basis that he continued to receive the same compensation under the FedEx service contract as he did before the injury occurred.

Lack of Salary Irrelevant for Self-Employed Worker

The appeals officer concluded that Mensah was not entitled to temporary disability benefits because his salary could not be established from his personal and corporate income tax filings and he could not produce any pay stubs or other evidence of a salary. The high court said that was typical of anyone who was self-employed. The Court said the record clearly established that Mensah received compensation from FedEx under his service contract, and he paid another employee to complete his delivery route during the time that he was medically restricted from doing so, demonstrating a loss to Mensah’s business income. While Mensah had not received a salary from his business, the appeals officer erred when she concluded that she was unable to calculate Mensah’s average monthly wage. The appeals officer should have determined the best method for calculating any loss to appellant’s wages resulting from his industrial injury, taking into account both his business’s income and expenses, and not limited her determination merely to what Mensah paid himself as a salary.