Opinion
No. 1081 C.D. 2011
08-22-2012
Eric Cross, Petitioner v. Workers' Compensation Appeal Board (SALP/Comcast/Spectacor), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Eric Cross (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated May 24, 2011. The Board affirmed, as modified, a decision and order of the Workers' Compensation Judge (WCJ), which determined Claimant's average weekly wage (AWW) to be $579.90, pursuant to Section 309(d) of the Workers' Compensation Act (the Act). For the reasons set forth below, we vacate and remand.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(d).
Claimant suffered an injury in the course and scope of his employment with SALP/Comcast/Spectacor (Employer) on October 15, 2000. (Reproduced Record (R.R.) at 79a.) Claimant, as a member of the Teamsters Local 107 union, was hired by Employer to assist in a stage breakdown. (R.R. at 28a.) Claimant reported for work on October 15, 2000, at an hourly wage of $19.33. (Id. at 104a.) Claimant's injury occurred when Claimant was pinned inside a trailer as a result of a stack of steel beams falling. (Id. at 28a.) Claimant sustained injuries to his left ankle and lower back. (Id.) Claimant was treated at the Southward Facility/Methodist Hospital in Philadelphia. (Id.) Employer issued a Notice of Temporary Compensation Payable on November 1, 2000, regarding the injuries sustained on October 15, 2000. (Id.) The Notice of Temporary Compensation Payable and Statement of Wages reflected an AWW of $115.98 and a compensation rate of $104.38. (Id.) Thereafter, on November 16, 2000, Claimant filed a petition for review of his compensation benefits alleging that his AWW was incorrect. (Id. at 1a.) Employer subsequently filed a notice of compensation denial and refused to pay Claimant's compensation benefits as of January 4, 2001. (Id. at 11a.) In response, Claimant filed a claim petition and petition for penalties, seeking attorney's fees on the asserted ground that Employer violated the Act by unilaterally suspending his benefits. (Id.) The petitions were assigned to a WCJ, and the WCJ held hearings.
Before the WCJ, Claimant testified on his own behalf and presented deposition testimony of Anne Johnson, a claims adjuster for Employer, and Sean Fletcher, director of operations for Employer. Claimant testified to his hourly wage of approximately $19.50, and he also testified that, at the time of the hearing, he had been a member of the Teamsters Local 107 for approximately ten years. (Id. at 100a.) Claimant testified that he received a call about the job with Employer on October 15, 2000. (Id. at 104a.) With respect to Claimant's job responsibilities for Employer, Claimant served as a supervisor for the stage breakdown and was further directed to work on the loading dock. (Id. at 105a.) Claimant then specified the cause of his injuries. (Id. at 108a-10a.) Claimant testified that he had been working for approximately six and a half hours prior to his injury. (Id. at 111a.) Additionally, Claimant noted that his pay range with the Teamsters Local 107 was normally between $16.50 and $22.50. (Id. at 112a.) Claimant also submitted into evidence federal income tax forms for the year 2000 for the WCJ's consideration.
With respect to his employment history, Claimant stated that he had only worked for Employer one time, on October 15, 2000. (Id. at 126a.) Claimant testified to being unsure of his employment relationship with Employer and whether he would return to work for Employer after October 15, 2000. (Id.)
Ms. Johnson, a claims adjuster for Employer, testified that Claimant was hired by Employer for a one day job and Claimant had never worked for Employer prior to the October 15, 2000 injury. (Id. at 173a-74a.) Ms. Johnson confirmed Claimant's hourly rate of $19.33 and also testified that Claimant was expected to work six hours for Employer. (Id. at 174a.) To calculate Claimant's AWW, Ms. Johnson stated that she reviewed the Act in order to assist her in calculating the AWW. (Id. at 175a-76a.) Ms. Johnson stated that she did not need to review Claimant's past wages in order to calculate his AWW, nor did she know his regular hours through the Teamsters Local 107. (Id. at 180a, 182a.) Based on Claimant's relationship with Employer, Ms. Johnson used Section 309(d.2) of the Act to calculate his AWW and multiplied Claimant's hourly rate of $19.33 by six, which was the hours Claimant was expected to work. (Id. at 179a, 180a.)
Section 309(d.2) of the Act, Act of June 24, 1996, P.L. 350, as amended, 77 P.S. § 582(d.2), provides, in part that:
If an employe has worked less than a complete period of thirteen calendar weeks and does not have fixed weekly wages, the average weekly wage shall be the hourly wage multiplied by the number of hours the employe was expected to work per week under the terms of the employment.
Mr. Fletcher, director of operations for Employer, testified that Claimant was a temporary worker on October 15, 2000, when he was injured. (Id. at 195a.) Further, Mr. Fletcher confirmed Claimant's hourly rate of $19.33, excluding benefits. (Id. at 197a.)
In a decision and order dated September 27, 2002, the WCJ ultimately ruled in Claimant's favor and ordered Employer to amend the Notice of Compensation Payable to reflect an AWW of $773.20 and a corresponding compensation rate of $515.47. (Id. at 13a.) This figure was based on a forty hour work week at a rate of $19.33 per hour, because the WCJ concluded that Claimant was expected to work forty hours per week. Further, the WCJ ordered Employer to pay a penalty equal to 50% of any and all benefits improperly held from Claimant. (Id.) Finally, based on Employer's unilateral termination of benefits and the fact that the WCJ concluded that the termination was an unreasonable contest, the WCJ ordered Employer to pay Claimant's attorney's fees. (Id.)
Employer appealed the WCJ's decision to the Board. Employer argued that substantial evidence did not exist to support the conclusion that Claimant's AWW was $773.20, because there was evidence in the record that Claimant was hired by Employer for a one day job. (Id. at 17a.) Employer argued, therefore, that Claimant was only expected to work for one six hour day. The Board concluded, in its December 19, 2003 decision and order, that the WCJ provided no explanation in calculating Claimant's AWW and further there was no explanation for an AWW of $773.20 with a corresponding compensation rate of $515.47. (Id. at 20a.) The Board also noted that the WCJ failed to make any credibility determinations. (Id.) Because a WCJ must file a "reasoned decision" under the Act, the Board vacated the WCJ's decision and remanded the case for additional fact finding. (Id. at 21a.)
Employer also argued that that the WCJ erred in concluding that Employer unreasonably terminated Claimant's wages and erred in awarding Claimant attorney's fees. Those issues, however, are not the subject of this appeal, and we need not address them further.
Section 422(a) of the Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
On remand, the WCJ issued a decision and order dated August 30, 2004. The WCJ found that Claimant credibly testified to his union rate ranging from $16.50 to $22.50 per hour. (Id. at 28a.) The WCJ also considered Claimant's IRS Form 1040 for the year 2000 indicating income of $18,795.00 for the first forty-one weeks of the year (i.e., indicates Claimant's wages for the year 2000 prior to his injury). (Id.) Based on this evidence, the WCJ found that "[i]n light of [C]laimant's credible testimony of his hourly rate, the tax return indicates that he worked more than six hours a day in the 41 weeks of the year prior to the injury." (Id.)
The WCJ also considered the testimony of Ms. Johnson and Mr. Fletcher, which confirmed Claimant's hourly rate to be $19.33 for this particular job with Employer. (Id.) The WCJ found that Ms. Johnson calculated Claimant's AWW solely on the six hours Claimant worked on the day of his injury and failed to consider a prior statement of wages, even though she had the opportunity to do so. (Id.) The WCJ concluded that Ms. Johnson's calculation of Claimant's wages was incorrect. (Id.) As a result, the WCJ affirmed his prior decision finding an AWW of $773.20. (Id. at 30a.)
Employer again appealed to the Board, arguing that the WCJ failed to issue a reasoned decision. (Id. at 35a.) On April 26, 2005, the Board affirmed the WCJ's order. (Id. at 39a.) Thereafter, Employer petitioned this Court for review, claiming that it was an error of law to find that Claimant's average weekly wage was $773.20. (Id. at 44a.)
In our January 19, 2006 opinion, we stated that while "there was sufficient evidence of record for the WCJ to conclude that Claimant was hired at a rate of $19.33 per hour, the WCJ could not explain how he reached the conclusion that Claimant was hired to work a forty-hour work week, or for that matter, how Claimant's income tax return helped him reach this crucial conclusion." (Id. at 46a.) Further, the Board also failed to address this issue. (Id.) Accordingly, we remanded the matter to the Board, with instruction that the case be remanded to the WCJ to provide a reasoned explanation for concluding that Claimant was hired to work forty hours per week or to recalculate Claimant's benefits pursuant to Section 309 of the Act. (Id.)
On remand to the WCJ pursuant to our January 19, 2006 opinion, the WCJ issued a decision and order, dated October 31, 2007. The WCJ provided, in part, the following explanation for his AWW calculation of $773.20:
2. With reference to this remand, the testimony of Sean Fletcher and Anne Johnson was considered. Fletcher was First Union Center's Director of Operations and Johnson the adjuster who handled the original claim for the carrier. I noted before that Cross was a 10 year member of the Teamsters' local when he was injured. Ms. Johnson erroneously calculated the pre-injury wage by multiplying $19.33 by six hours under § 309(d)(2) ignoring his earnings in the preceding year. She erroneously considered him not [sic] a temporary worker.
3. Fletcher confirmed in his testimony that claimant was a temporary employee on the date of injury. He had offered to fax over a Statement of Wages, but Ms. Johnson declined to accept it. She did not think she needed it.(R.R. at 54a.) As a result of the WCJ's findings and explanations, the WCJ concluded that Claimant met his burden of proving his Notice of Temporary Compensation Payable was incorrect and further that a figure of $773.20 better reflected the reality of Claimant's working life. (Id. at 55a.)
4. However, this WCJ concluded that claimant had been hired to work a forty hour week and I am now directed to explain why I did so. Cross had been working for this employer less than 13 weeks when he was injured. He had been working through the union hall for more than 10 years and wages should have been calculated on his daily pay rate rather than a weekly rate.
5. His wages should have been calculated at $115.98 a day. Otherwise, his yearly earnings would have been barely $6,000, rather than the actually reported earnings of $18,795 for only 41 weeks in the year 2000.
6. Defendant has offered no evidence to substantiate its bald-faced assertion that its calculation of 6 hours a week has any substance whatsoever.
Employer appealed the WCJ's October 31, 2007 decision to the Board. Employer maintained that the WCJ lacked substantial evidence to support the finding that Claimant's AWW should have been calculated on a forty hour week basis and it was an error of law to conclude that Claimant's AWW was $773.20. (Id. at 58a.) The Board reasoned that, based on the purpose of the Act, which is to compensate injured workers for loss and provide a reasonable assessment of a claimant's pre-injury ability to generate future earnings, the WCJ's decision was reasonable. (Id. at 62a.) Accordingly, on August 15, 2008, the Board affirmed the WCJ's order by a decision and order. (Id. at 63a.)
Employer petitioned for review of the Board's August 15, 2008 order to this Court, arguing again that the WCJ's calculation of Claimant's AWW was not supported by substantial evidence. (Id. at 72a.) By decision and order dated February 27, 2009, we vacated the WCJ's decision and remanded to the Board for further remand to the WCJ. (Id. at 65a.) Specifically, we concluded that the WCJ's findings of fact relating to Claimant's AWW were not supported by substantial evidence of record. (Id. at 74a.) We reasoned that the only evidence relating to Claimant's earnings, beyond his hourly rate of $19.33, consisted of his year 2000 federal income tax return which reflected earnings of $18,795.00 over a forty-one week period. (Id.) This evidence did not support a finding that Claimant worked forty hours per week at a rate of $19.33. (Id.) Once again, in our order, we instructed the WCJ to provide a reasoned explanation for Claimant's AWW or to recalculate his benefits under Section 309(d.2) of the Act.
On remand to the WCJ for the third time, the WCJ used the following explanation for Claimant's AWW calculation:
9. I conclude that Cross had been hired to work a forty hour week and he reasonably expected to do so. When injured he had been working with this employer only 13 weeks. However, he had been working out of the Union Hall for more than 10 years. Wages should have been calculated on the daily rate of pay rather than a weekly rate.
10. Cross' Federal Income Tax Return for the year 200[0] shows gross wages of $18,795 earned in the 41 weeks before the injury. At an hourly rate of $19.33 and forty hours, he would have an average weekly wage of $773.20. This fits the tax form far
better than the calculation of an AWW of $115.98. The latter number multiplied by 52 weeks only yields gross wages of $6,030.96.(Id. at 80a.) Accordingly, the WCJ's order confirmed Claimant's AWW of $773.20 as reflecting the reality of his pre-injury work experience. Yet again, Employer appealed the WCJ's October 9, 2009 order, arguing that an AWW of $773.20 was not supported by substantial evidence. (Id. at 83a.)
11. Such a result is absurd.
12. Defendant/employer presented no evidence.
13. I find Eric Cross' average weekly wage as of the date of injury was $773.20, yielding a compensation rate of $515.47.
By decision and order dated May 24, 2011, the Board affirmed as modified the WCJ's decision. The Board noted that Section 309(d.2) applies in the case of short-term employees who have worked less than a thirteen week period for whom there is no accurate measure of AWW, other than taking the existing hourly wage and projecting forward on the basis of the hours worked under the employment agreement. (Id. at 87a); Reifsnyder v. Workers' Comp. Appeal Bd. (Dana Corp.), 584 Pa. 341, 883 A.2d 537 (2005). Further, the Board stated that pursuant to Environmental Options Group v. Workers' Compensation Appeal Board (Brown), 787 A.2d 460 (Pa. Cmwlth. 2001), appeal denied, 569 Pa. 696, 803 A.2d 736 (2002), where there is evidence of the hours the employee is expected to work, the AWW is based on that information, and may not be based on the hours actually worked. See Section 309(d.2) of the Act. However, where there is not a number of hours the employee is expected to work, the Board relied on Burkhart Refractory Installation v. Workers' Compensation Appeal Board (Christ), 896 A.2d 9 (Pa. Cmwlth.), appeal denied, 588 Pa. 790, 906 A.2d 1197 (2006), in calculating the proper AWW. The Board concluded that where there is not a set number of hours an employee is expected to work, the AWW is based on the hours the employee actually worked. (R.R. at 86a.) The Board reiterated the Act's purpose, which is to accurately capture the economic reality when calculating the AWW. Considering that Claimant had worked for Employer only one day, it applied the Christ standard in calculating his AWW. (Id. at 90a.) Specifically, the Board stated that "there is no indication that the evidence herein establishes anything concerning Claimant's expected situation in the week(s) following October 15, 2000, and therefore, we conclude that the AWW in this matter may be based on the hours Claimant actually worked." (Id.) The Board, therefore, concluded that Claimant's daily earnings were $115.98 based on a six hour work day at an hourly rate of $19.33. (Id.) The Board also concluded that Claimant's AWW based on hours worked would be $579.90 based on a five day work week at the daily rate of $115.98. (Id.) Claimant's petition for review to this Court followed.
On appeal, Claimant argues that the Board committed an error of law in relying on Christ and calculating Claimant's AWW based on a six hour work day as opposed to an eight hour work day. Claimant posits that calculating his AWW based on his hours actually worked for one day fails to capture Claimant's true economic reality. Claimant argues that a calculation involving a six hour work day effectively penalizes Claimant for an inability to complete a work day due to his injury.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
We conclude that the Board erred because it relied upon insufficient evidence to calculate Claimant's AWW. The Board has a duty to examine the evidence in the record to determine if the WCJ's findings are supported by substantial evidence. See Vinwinco v. Workers' Comp. Appeal Bd. (Horner), 656 A.2d 566, 571 (Pa. Cmwlth. 1995). When the Board makes reference to the WCJ's findings, but fails to reference the evidence to support those findings, it fails to fulfill its duty of appellate review. Id. We note that the WCJ is the individual "responsible for making [sufficient] findings [of fact] and, where he has failed to do so, the correct and indeed only remedy is to remand." Royal Pizza House, Inc. v. Workmen's Comp. Appeal Bd., 396 A.2d 884, 885 (Pa. Cmwlth. 1979).
Here, while the Board disagreed with the WCJ's finding that Claimant was expected to work forty hours, the Board only references the WCJ's findings and essentially makes its own conclusion that Claimant was only expected to work six hours per day, based on the hours Claimant worked for Employer. The Board did not base its finding on any evidence in the record and it essentially disguises this finding of fact as a conclusion of law. Accordingly, the Board should have remanded the matter to the WCJ rather than making its own determination based on insufficient evidence.
Specifically, we reiterate that the hourly rate and the number of hours an employee is expected to work per week are factual determinations subject to the WCJ's credibility assessments. See Lahr Mechanical v. Workers' Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1099 (Pa. Cmwlth. 2007).
Moreover, the Board cannot calculate an AWW based on the hours worked at one job for one day. The General Assembly has intended the Act to provide a fair assessment of an employee's wages. See Hannaberry HVAC v. Workers' Comp. Appeal Bd. (Snyder, Jr.), 575 Pa. 66, 80, 834 A.2d 524, 532 (2003). With that, the Act provides differing methods for AWW calculation in order to most accurately account for unique work factors in employment arrangements. Id. The Act also requires that we presume that the General Assembly did not intend a result that is absurd or unreasonable. Id. at 78, 834 A.2d at 531 (citing 1 Pa. C.S. § 1922(1); Housing Auth. of Cnty. of Chester v. Civil Serv. Comm'n, 556 Pa. 621, 730 A.2d 935 (1999)).
A calculation of a Claimant's AWW based on his hours worked for this one day does not accurately portray Claimant's future wages. However, we are unable to determine whether the Board erred in relying on Christ to calculate Claimant's AWW. In order for this Court to determine whether the Board committed legal error, we must have sufficient findings of fact to indicate the hours Claimant was reasonably expected to work based on Section 309(d.2) of the Act. The record is practically void of any evidence concerning Claimant's past or future wages, beyond his hourly wage of $19.33 at his job with Employer.
Claimant's AWW is a question of law reviewable by this Court. Lahr, 933 A.2d at 1099-1100.
As a result of the incomplete record, we further conclude that the WCJ's calculation of Claimant's AWW was not based on substantial evidence. The WCJ is the ultimate fact finder in workers' compensation cases, and we are bound by the WCJ's findings of fact if they are supported by substantial evidence. General Elec. Co. v. Workmen's Comp. Appeal Bd. (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth.), appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). It does not matter that there is evidence of record which could support a finding contrary to that made by the WCJ, the only inquiry is whether there is evidence of record which supports the WCJ's finding. Hoffmaster v. Workers' Comp. Appeal Bd. (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). When reviewing the determination of the WCJ, an appellate court must ascertain whether, upon consideration of the evidence as a whole, the findings of fact have the requisite measure of support in the record. Condran v. Workers' Comp. Appeal Bd. (H.B. Reese Candy Co.), 721 A.2d 1133, 1138 (Pa. Cmwlth. 1998), appeal denied, 560 Pa. 750, 747 A.2d 371 (1999).
Section 422(a) of the Act requires a WCJ to issue a reasoned decision such that it that permits an appellate court to exercise adequate appellate review. Amendeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012). Appellate review is "absolutely dependent upon findings of fact which are sufficiently detailed to allow application of the proper legal principles." Royal Pizza House Inc., 396 A.2d at 885.
When looking to the WCJ's October 9, 2009 decision and order, the WCJ considered the testimony of Claimant, Ms. Johnson and Mr. Fletcher. The WCJ also considered Claimant's ten year membership with Teamsters Local 107, as well as Claimant's testimony regarding his hourly wage with Employer and his hourly wage range with the Teamsters Local 107. Both Ms. Johnson and Mr. Fletcher considered Claimant to be a temporary worker hired to work for Employer for one day only. With this evidence and Claimant's Federal Income Tax Return showing gross wages of $18,795.00, the WCJ concluded that an AWW of $773.20 "far better fits" the submitted tax form than an AWW of $115.98. (R.R. at 80a.) "The latter number multiplied by 52 weeks only yields gross wages of $6,030.96. Such a result is absurd." (Id.) To calculate the AWW, the WCJ decided to use a forty hour work week, without any evidence from the record, but rather because that calculation better "fit" the year 2000 tax form. Furthermore, the submitted tax form indicates gross wages of $18,795.00 for the first forty-one weeks of the year. $18,795.00 divided by 41 provides an AWW of $458.41. The WCJ is unable to explain how the tax form assisted him in reaching a higher AWW figure of $773.20 beyond the WCJ's statement that $773.20 better "fits" the tax form. The WCJ's explanation does not constitute a reasoned decision, which would allow us to properly apply legal principles.
Furthermore, there is no evidence in the record to support a finding that Claimant was reasonably expected to work forty hours a week, six hours a week, or thirty hours a week pursuant to the Board's finding. The only hearing held by the WCJ occurred on February 14, 2001. Much of the testimony presented dealt with the circumstances surrounding Claimant's injury. The record is barren of any evidence concerning Claimant's past wages, or how many hours Claimant typically worked for various employers in one week. While we are cognizant of the purpose of Section 309(d.2) of the Act, which is to provide a prospective calculation of potential earnings, Reifsnyder, 584 Pa. at 356-57, 883 A.2d at 546, it is necessary to have an understanding of Claimant's past or present wages in order to most accurately project Claimant's future potential earnings, given the nature of Claimant's work for multiple employers.
While we are loathe to remand this case yet again, we are unable to provide meaningful appellate review based on the inadequate record provided.
Accordingly, the order of the Board is vacated and the case is remanded to the Board with instruction that it be remanded to the WCJ with instruction that the WCJ conduct a new hearing regarding the number of hours per week that Claimant was reasonably expected to work for his various employers, issue new findings of fact and conclusions of law, and recalculate Claimant's AWW in accordance with this opinion.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 22nd day of August, 2012, the order of the Workers' Compensation Appeal Board (Board), dated May 24, 2011, is hereby VACATED, and the matter is REMANDED to the Board with specific instructions to remand the case to the WCJ to conduct a new hearing regarding the number of hours per week that Petitioner Eric Cross (Claimant) was reasonably expected to work for his various employers, issue new findings of fact and conclusions of law, and calculate Claimant's average weekly wage (AWW) in accordance with this opinion.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION BY SENIOR JUDGE FRIEDMAN
Although I agree with the result reached by the majority to vacate and remand, I disagree with the remand instructions, which limit the remand to a hearing to ascertain the number of hours per week that Eric Cross (Claimant) was reasonably expected to work for his various employers. As the majority acknowledges, the record is devoid of any evidence concerning Claimant's past wages or how many hours Claimant typically worked for various employers in one week. The record is likewise devoid of any evidence regarding whether Claimant worked for any of the employers for more than thirteen consecutive weeks. I believe this information is critical to determining the proper method of calculating Claimant's average weekly wage under section 309 of the Workers' Compensation Act.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §582. --------
For these reasons, I would further instruct the workers' compensation judge on remand to ascertain the number of hours per week Claimant had actually worked for other employers, the wages earned, and whether Claimant had worked for any of the employers for more than thirteen consecutive weeks. I believe such information is necessary to fairly ascertain Claimant's earnings and to capture Claimant's true economic reality.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge