Opinion
No. 2257 C.D. 2011
04-30-2012
Robert Janson, Petitioner v. Workers' Compensation Appeal Board (EM Force, Inc.), Respondent
ORDER
AND NOW, this 3rd day of August, 2012, the opinion filed April 30, 2012, in the above-captioned matter shall be designated Opinion rather than Memorandum Opinion, and it shall be reported.
/s/_________
DAN PELLEGRINI, President Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION BY PRESIDENT JUDGE PELLEGRINI
Robert Janson (Claimant) has filed a petition for review from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) granting his claim petition and calculating his average weekly wage pursuant to Section 309(d) of the Workers' Compensation Act, relating to employees who are "employed" for 52 weeks prior to their work injury even though the employee actually worked less than three consecutive 13-week periods in the 52 weeks prior to the injury, rather than under Section 309(d.2) relating to employees who have a "long-term employment relationship" with their employers with some periods of layoffs. For the reasons that follow, we affirm the Board's decision.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §582(d).
77 P.S. §582(d.2).
Claimant was employed by emForce, Inc. (Employer) for five years as an electrician. Employer's place of business was located in Richboro, Pennsylvania. The business was a temporary agency that staffed companies in the tri-state area - Pennsylvania, New Jersey and Delaware, with non-union contractors. On September 12, 2006, while working at a job site in Ewing, New Jersey, Claimant fell off a ladder after coming into contact with an electrical current and sustained injuries to his right hand and forearm. He underwent two surgeries for a fracture of the humerus and subsequently was diagnosed with a TFCC tear of his right wrist. Claimant received New Jersey workers' compensation benefits from Employer's carrier, Hartford Insurance Company.
Claimant then filed a claim petition in Pennsylvania alleging that he suffered those same injuries and requested total disability benefits. Employer filed an answer denying all of the allegations. At a hearing before the WCJ, Claimant testified regarding his accident and his surgeries performed by Ahmar Shakir, M.D. (Dr. Shakir). He stated that Dr. Shakir had determined that he had reached maximum medical improvement as of March 4, 2008, and had told Claimant that he could do light work. Claimant testified that he first worked for Employer in 2001 and had consistently worked for Employer through 2006 with periods of layoffs of a month or two in between with the last layoff before December 2005. Claimant stated that his rate of pay with Employer was $16 per hour and it was around $20 per hour when he last worked for Employer. He averaged about 35 hours per week at $20 per hour. Claimant stated that he went back to work at the end of August or early September 2006, about two weeks prior to his work injury. Claimant testified that while on layoff, he worked for American Courier Services as a driver for medical supplies for a hospital, and he stopped working for that company in March 2006. He stated that he did not file a tax return regarding his wages with American Courier Services, and he offered no testimony concerning his wages with that company.
Claimant also submitted the expert medical report of Barry J. Snyder, M.D. (Dr. Snyder), who examined Claimant at the request of the State Workers' Insurance Fund on February 19, 2009. Dr. Snyder also opined that Claimant had reached maximum medical improvement, but further found that the residual radial nerve palsy was a permanent impairment from his work injury; grip strength and forearm/wrist strength would continue to be weak, and wrist motion would remain limited; and shoulder and elbow motion limitations were permanent impairments related to the work incident.
Employer submitted the deposition testimony of Edward McFillin (McFillin), the President and Chief Operating Officer of emForce, who stated that Claimant was an employee of emForce and understood that he was responsible for providing workers' compensation coverage for his employees in Pennsylvania as well. McFillin explained that Claimant had signed a contract and when an assignment ended, Claimant would be laid off and would collect unemployment benefits. During those periods of layoff, Claimant had to maintain an employment relationship with Employer; if Claimant obtained employment with another employer during that period of layoff, the employment relationship with Employer would end, and Claimant would need to reapply for employment with emForce. If Claimant was not working on a job for Employer and was laid off, he was required to check in at least once a week with McFillin. McFillin testified that he was not aware that Claimant ever severed his employment relationship with emForce by taking another job with another employer while laid off. McFillin identified Claimant's 2005-2006 W-2 forms and stated that the weekly payroll records indicated that Claimant received $2,624 in wages in 2005; $1,056 in wages in 2006 from jobs he worked over the course of the year and he may have worked three quarters of the year in 2001 or 2002, but the two years prior to his injury, he hardly worked at all. McFillin stated that Claimant did not work from January 2006 to September 2006 when he started the job at which he was injured. McFillin testified that Claimant worked 35 hours or over per week when he was on an assignment and was making $18 per hour plus $2 per diem.
The WCJ granted Claimant's claim petition finding that Claimant's testimony regarding the work incident, his injury and his physical abilities were supported by credible medical evidence and established that he suffered a work-related injury on September12, 2006, from which he had not fully recovered. However, the WCJ was not persuaded by Claimant's testimony that his average weekly wage was $800 per week (40 hours/week x $20/hour) because it was rebutted by Employer's wage records and McFillin's credible testimony. Because Claimant admitted that he had an ongoing employment relationship with Employer for five years prior to the work injury, and Claimant had not worked from March 2006 through September 2006, Claimant's wages were to be calculated according to Section 309(d) of the Act for an average weekly wage of $81.23 based on his earnings for the four quarters preceding the work injury and a weekly compensation rate of $73.11.
Claimant appealed the WCJ's decision to the Board arguing that the WCJ should have calculated the average weekly wage based on Section 309(d.2) of the Act rather than on Section 309(d) of the Act. Sections 309(d) and (d.2) of the Act set forth the two methods for calculating the average weekly wages of claimants who are not paid weekly, monthly or yearly:
(d) If at the time of the injury the wages are fixed by any manner [other than weekly, monthly, or yearly], the average weekly wage shall be calculated by dividing by thirteen the total wages earned in the employ of the employer in each of the highest three of the last four consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately preceding the injury and by averaging the total amounts earned during these three periods.
* * *
(d.2) If the 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 rate multiplied by the number of hours the employe was expected to work per week under the terms of employment.
The Board explained that the term "employ" was not limited to the actual days an employee worked for wages but encompassed the period of time that an employment relationship was maintained between the parties. It further stated:
Therefore, if the injured worker is a long-term employee who is 'employed' during the 52 weeks prior to the work injury, the AWW [average weekly wage] is calculated pursuant to Section 309(d), even though the employee actually worked less than three consecutive 13-week periods in the 52 weeks prior to the injury. [Citation omitted.] Moreover, even though an employee has periods of layoff in the four 13-week periods prior to the work injury, the AWW is calculated pursuant to Section 309(d) for long-term employees who were 'employed' during those 2 weeks. Reifsnyder v. WCAB (Dana Corp.), 883 A.2d 537 (Pa. 2005). On the other hand, Section 309(d.2) governs recently hired employees for whom there is, by definition, no other accurate measure of AWW.(Board's November 9, 2011 decision at 2-3.) The Board went on to determine that the WCJ did not err in using Section 309(d) to calculate Claimant's average weekly wage because that section was appropriate for calculating wages for long-term employment relationships between employers and workers who were employed during the 52 weeks prior to the work injury, even where the employee worked less than three consecutive 13-week periods in the 52 weeks prior to the injury for reasons such as periodic layoffs. The Board relied on Claimant's own testimony that he worked for Employer consistently for five years prior to his injury and Employer's wage history as an accurate indicator of Claimant's past earnings with Employer. The Board also rejected Claimant's testimony that his work as a courier for a hospital terminated his employment relationship with Employer making him a newly hired employee whose average weekly wage was subject to Section 309(d.2) based on McFillin's testimony that he was not aware that Claimant had worked anywhere else while he was laid off and he considered him to be an employee when he was injured in 2006. There also was no evidence in the record that Claimant was ever terminated. This appeal by Claimant followed.
Our scope of review of the Board's decision is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or whether an error of law was committed. Repash v. Workers' Compensation Appeal Board (City of Philadelphia), 961 A.2d 227 (Pa. Cmwlth. 2008).
On appeal, Claimant alleges that the Board erred in relying on Section 309(d) because Employer told him that if he worked for another employer while laid off, he would be terminated and he would have to be rehired. Because he worked for American Courier Services as a driver from December 2005 through March 2006 during a layoff, which immediately preceded his work injury, he was considered a new hire at the time of his injury due to the severance of the employment relationship. Therefore, Claimant argues that the Board incorrectly relied on Reifsnyder v. Workers' Compensation Appeal Board (Dana Corporation), 584 Pa. 341, 883 A.2d 537 (2005), a case that calculates weekly wages for employees who have an ongoing long-term employment relationship and periods of periodic layoffs, and the Board should have relied on Section 309(d.2).
In Reifsnyder, our Supreme Court specifically discussed how to calculate the average weekly wage for an injured worker who had a long-term relationship with his employer and who was subject to work-related layoffs for economic reasons, but it did not involve interim employment during the layoff periods. Jeffrey Reifsnyder was employed for approximately 19 years and his employment relationship with Dana Corporation was subject to a collective bargaining agreement. The Court determined that:
In the cases sub judice, as in Hannaberry[ ] and Colpetzer,[ ] the statute does not specifically address the work scenario presented, i.e., there is no explicit mention in the statute of whether and how, in the calculation of AWW, to account for periods when a worker was laid off in the previous year, much less how to account for such layoffs if they are a common occurrence in a long-term employment relationship. Nevertheless, we believe that the structure and plain language of the statute clearly indicate that Section 309(d), not subsection 309(d.2), controls the calculation and also provides an accurate measure of such a type of workers' economic reality and earning capacity. As previously stated, Section 309(d) and subsections (d.1)[] and (d.2) address work/employment histories - i.e., employees who have been employed for at least four consecutive periods of thirteen calendar weeks. Subsections (d.1) and (d.2) address progressively shorter employment relationships:
(d.1) governs employees employed for at least one, but less than three consecutive periods of thirteen calendar weeks; while (d.2) addresses cases of recent hires, i.e., employees who worked less than a single complete period of thirteen calendar weeks at the time they suffered a work injury.Id., 584 Pa. at 356-357, 883 A.2d at 546-547. (Bold in original.) Reifsnyder instructs us that Section 309(d.2) should only be used in situations when employees have a relatively short work history with the employer, i.e., new hires. Therefore, relative to the case before us, if Claimant had terminated his long-term relationship with Employer when he took the job with American Courier Services, Section309(d.2) would be the appropriate section for the WCJ to rely upon in calculating his average weekly wage.
The structure of the statute strongly indicates that subsection (d.2) was not intended to apply to employees, such as Claimants here, with long-term employment relationship with their employer, who happen to have been subject to layoffs. Both (d) and (d.1) include look-back periods encompassing the preceding fifty-two weeks, in search of "completed" thirteen-week periods; in contrast, subsection (d.2) has no such long-term focus, and indeed, it provides for a prospective calculation of potential earnings. By its terms, (d.2) contemplates persons for whom there is little work history with the employer upon which to calculate the AWW. Viewing the interrelationship of these subsections, we deem it unlikely in the extreme that the General Assembly intended (d.2) to supplant (d) or (d.1) anytime a long-term employment relationship happens to involve periods with a "work" cessation. Instead, we conclude that subsection (d.2) was intended for instances that it plainly covers; i.e., those instances of work injuries to recently-hired employees for whom there was, by definition, no accurate measure of AWW other than taking the existing hourly wage and projecting forward on the basis of the hours of work expected under the employment agreement.
Hannaberry HVAC v. Workers' Compensation Appeal Board (Snyder, Jr.), 575 Pa. 66, 834 A.2d 524 (2003).
Colpetzer v. Workers' Compensation Appeal Board (Standard Steel), 582 Pa. 295, 870 A.2d 875 (2005).
Section 309(d.1), 77 P.S. §582(d.1), provides:
If the employe has not been employed by the employer for at least three consecutive periods of thirteen calendar weeks in the fifty two weeks immediately preceding the injury, the average weekly wage shall be calculated by dividing by thirteen the total wages earned in the employ of the employer for any completed period of thirteen calendar weeks immediately preceding the injury and by averaging the total amounts earned during such periods.
Unlike in Reifsnyder, this case is factually different because Claimant worked at another job while he was laid off before he was injured while Jeffrey Reifsnyder only worked for Dana Corporation. Also, Claimant only signed an employment agreement and did not have the benefits of a collective bargaining unit and collective bargaining agreement like Reifsnyder. However, it is not on those factual differences that Claimant is appealing.
Here, the WCJ found and Claimant admitted that he had an ongoing employment relationship with Employer for five years prior to the work incident. While Claimant stated that he had worked for American Courier Services between December 2005 and March 2006, the WCJ found McFillin's testimony credible when he stated that he was unaware that Claimant had ever severed ties with Employer. Because Claimant did not provide any evidence that he had been terminated and reapplied for employment with McFillin as a new hire, the WCJ properly determined that there had not been any severance of the employment relationship and that Section 309(d) of the Act was appropriate in determining Claimant's average weekly wage.
The WJC is the ultimate factfinder and may assess credibility and resolve conflicts in the evidence. Borough of Heidelberg v. Workers' Compensation Appeal Board (Selva), 894 A.2d 861 (Pa. Cmwlth. 2006).
Based upon our review of the contract, there is no requirement that Claimant has to apply to be rehired if he accepts other employment during a period of layoff. Nonetheless, Claimant's argument concurs with McFillin's characterization of the employment contract. --------
Consequently, based on the WCJ's findings and Reifsnyder, the Board properly determined that Section 309(d) applied because a long-term relationship existed between Claimant and Employer, even though Claimant was periodically laid off during that relationship. Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 30th day of April, 2012, the order of the Workers' Compensation Appeal Board, dated November 9, 2011, at No. A-09-1572, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge