{
  "id": 6140263,
  "name": "CRACKER BARREL and Fidelity & Guaranty Insurance Company v. Sherry L. (Shepherd) LASSITER",
  "name_abbreviation": "Cracker Barrel v. Lassiter",
  "decision_date": "2004-09-08",
  "docket_number": "CA 04-161",
  "first_page": "286",
  "last_page": "290",
  "citations": [
    {
      "type": "official",
      "cite": "87 Ark. App. 286"
    },
    {
      "type": "parallel",
      "cite": "190 S.W.3d 911"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "314 Ark. 479",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1912828
      ],
      "weight": 2,
      "year": 1993,
      "pin_cites": [
        {
          "page": "482",
          "parenthetical": "noting the application of Ark. Code Ann. \u00a7 ll-9-518(a) to part-time employees"
        },
        {
          "page": "317-18",
          "parenthetical": "noting the application of Ark. Code Ann. \u00a7 ll-9-518(a) to part-time employees"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/314/0479-01"
      ]
    },
    {
      "cite": "75 Ark. App. 68",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
        6137074
      ],
      "weight": 2,
      "year": 2001,
      "pin_cites": [
        {
          "page": "70",
          "parenthetical": "holding that a truck driver paid by the mile was a piece-rate worker"
        },
        {
          "page": "134",
          "parenthetical": "holding that a truck driver paid by the mile was a piece-rate worker"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark-app/75/0068-01"
      ]
    },
    {
      "cite": "81 Ark. App. 11",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
        6136139
      ],
      "weight": 2,
      "year": 2003,
      "pin_cites": [
        {
          "page": "14"
        },
        {
          "page": "911"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark-app/81/0011-01"
      ]
    },
    {
      "cite": "Ark. Code Ann. \u00a7 11-9-518",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "weight": 3,
      "year": 2002,
      "pin_cites": [
        {
          "page": "(a)(2)"
        },
        {
          "page": "(a)(l)"
        }
      ],
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 396,
    "char_count": 8268,
    "ocr_confidence": 0.752,
    "pagerank": {
      "raw": 4.03580807328026e-08,
      "percentile": 0.17492004360099758
    },
    "sha256": "35e3799230e475f6c5a39b4d8aace733ac3d2a4316d37f2886360dd33da27378",
    "simhash": "1:edd93fdff0c9f281",
    "word_count": 1371
  },
  "last_updated": "2023-07-14T19:54:56.491359+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Pittman and Robbins, JJ., agree."
    ],
    "parties": [
      "CRACKER BARREL and Fidelity & Guaranty Insurance Company v. Sherry L. (Shepherd) LASSITER"
    ],
    "opinions": [
      {
        "text": "Josephine Linker Hart, Judge.\nAppellants, Cracker Barrel J and FideHty & Guaranty Insurance Company, appeal from the award of temporary-total-disabibty benefits to appellee, Sherry L. (Shepherd) Lassiter. On appeal, appellants argue that the Commission erred in calculating appellee\u2019s average weekly wage, resulting in an erroneous rate of compensation. We affirm.\nAppellee was injured on November 9, 1999, while working for appellant Cracker Barrel. Before the administrative law judge (ALJ), appellee argued that appellants underpaid the amount of compensation she should have received. The ALJ calculated ap-pellee\u2019s average weekly wage and agreed with appellee. The ALJ first noted appellee\u2019s testimony that she began her employment with Cracker Barrel in August of 1998, starting as a server, and working in other positions before being promoted to shift leader on November 1,1999. As a shift leader, she earned $10.04 an hour, plus overtime, which was more than she earned in her other capacities. In calculating appellee\u2019s average weekly wage, the ALJ multiplied this wage rate by the average of 38.7 hours worked each week during the year preceding her injury, to arrive at a base wage of $388.54. The ALJ next considered that she worked 142 hours of overtime during the preceding year, which provided another $41.13 each week to her average weekly wage, making her average weekly wage $430 for the purposes of determining her compensation. The ALJ\u2019s order was adopted by the Commission.\nOn appeal, appellants assert that because the Commission erred in calculating appellee\u2019s average weekly wage, its computation of appellee\u2019s compensation was not supported by substantial evidence. For the purpose of calculating compensation, our statutes provide as follows:\n(a) (1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.\n(2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in a full-time workweek in the employment.\n(b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two (52) weeks preceding the accident.\n(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.\nArk. Code Ann. \u00a7 11-9-518 (Kepi. 2002). On an appeal from a determination of an employee\u2019s average weekly wage, we affirm the Commission\u2019s findings if supported by substantial evidence. See Magnet Cove Sch. Dist. v. Barnett, 81 Ark. App. 11, 14, 97 S.W.3d 909, 911 (2003).\nIn asserting that the Commission\u2019s calculation was not supported by substantial evidence, appellants argue that the Commission should have considered Ark. Code Ann. \u00a7 11-9-518(a)(2), which applies to the determination of the average weekly wage for injured employees working on a \u201cpiece basis.\u201d A piece-rate worker, however, is one whose pay is based on the quantity of work done. See Taylor v. Lubritech, 75 Ark. App. 68, 70, 54 S.W.3d 132, 134 (2001) (holding that a truck driver paid by the mile was a piece-rate worker). In our view, appellee was paid an hourly wage, not on a piece basis, and consequently, that portion of the statute has no applicability here.\nAppellants further contend that Ark. Code Ann. \u00a711-9-518(a)(l) does not apply here in calculating appellee\u2019s compensation. As noted above, that subsection provides that compensation is \u201ccomputed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.\u201d Appellants argue that because appellee was never guaranteed 40 hours of work each week, this subsection does not apply, as there was no contract of hire in force at the time of the accident reflecting that she was a full-time employee. This subsection, however, does not require that an employee must work 40 hours each week for the purposes of calculating compensation, only that it be computed on no less than a full-time workweek in the employment. See Metro Temps. v. Boyd, 314 Ark. 479, 482, 863 S.W.2d 316, 317-18 (1993) (noting the application of Ark. Code Ann. \u00a7 ll-9-518(a) to part-time employees). We note that the Commission did not calculate appellee\u2019s compensation based on 40 hours worked each week but instead used an average week of 38.7 hours.\nFinally, appellants contend that even if Ark. Code Ann. \u00a7 ll-9-518(a)(l) applies, the Commission erred in using the $10.04 hourly wage in determining appellee\u2019s average weekly wage. Appellants note that for the 52 weeks preceding her injury, as well as for the pay period beginning October 30, 1999, and ending on November 5, 1999, and the pay period beginning November 6, 1999, and ending on November 12, 1999, appellee worked in various capacities at various wage rates. Appellants argue that the Commission should have considered this evidence in determining appellee\u2019s average weekly wage, as it indicates that appellee\u2019s \u201ccontract of hire\u201d was for employment in various capacities at various wages. Appellants additionally assert that appellee\u2019s wage should have been determined through the application of Ark. Code Ann. \u00a7 ll-9-518(c), which provides that \u201c[i]f, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.\u201d\nAppellee testified that on November 1, 1999, she was promoted to shift leader, earning $10.04 an. hour, plus overtime, and that she was working as a shift leader at the time of her accident on November 9, 1999. Further, she testified that after November 1, she worked as a shift leader \u201cother than what I was scheduled to do prior to that. . .,\u201d and \u201c[w]ith the exception of maybe an odd occurrence once or twice a month, I always worked shift leader after I started doing shift leader in November. . . .\u201d She also stated that she \u201cworked anywhere from 60 to 70 or 75 hours a week every week.\u201d Other evidence established that from October 30, 1999, to November 5, 1999, she worked 16.25 hours at various lower wages and 31.26 hours as a shift leader; that she worked 17.83 hours at lower wages and 44.44 hours as a shift leader from November 6, 1999, through November 12, 1999; and that for the week ending November 19, 1999, she worked 35.63 hours as a shift leader.\nTo summarize, prior to her accident, she was hired as a shift leader for $10.04 hour and was working in this capacity at the time of her accident. And other than working some hours that were previously scheduled and the odd occurrence once or twice a month, appellee was earning $10.04 an hour, sometimes working well in excess of 40 hours a week in that position. Accordingly, we conclude that there was substantial evidence to support the Commission\u2019s calculation of appellee\u2019s average weekly wage using the $10.04 hourly wage, as the evidence shows that, at the time of and after her accident, she was working numerous hours at this wage, establishing that this was the wage earned by her under the contract of hire in force at the time of the accident.\nAffirmed.\nPittman and Robbins, JJ., agree.",
        "type": "majority",
        "author": "Josephine Linker Hart, Judge."
      }
    ],
    "attorneys": [
      "Barber, McCaskill, Jones & Hale, P.A., by: Wendy S. Wood, for appellant.",
      "Cullen & Co., PLLC, by: Tim Cullen, for appellee."
    ],
    "corrections": "",
    "head_matter": "CRACKER BARREL and Fidelity & Guaranty Insurance Company v. Sherry L. (Shepherd) LASSITER\nCA 04-161\n190 S.W.3d 911\nCourt of Appeals ofArkansas Division III\nOpinion delivered September 8, 2004\nBarber, McCaskill, Jones & Hale, P.A., by: Wendy S. Wood, for appellant.\nCullen & Co., PLLC, by: Tim Cullen, for appellee."
  },
  "file_name": "0286-01",
  "first_page_order": 310,
  "last_page_order": 314
}