Opinion
No. 1905 C.D. 2011
03-02-2012
Anthony Turner, Petitioner v. Workers' Compensation Appeal Board (City of Chester), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Anthony Turner (Claimant) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) denying in part Claimant's petition to review compensation benefits (review petition) because Claimant failed to establish that his average weekly wage was incorrectly calculated. For the reasons that follow, we affirm.
On May 6, 2007, Claimant was injured in the course of his employment as a firefighter for the City of Chester (Employer) when he tripped and fell over a fire hose. Employer issued a notice of temporary compensation payable (NTCP) describing the injury as a "low back, right shoulder, neck strain/sprain" and providing for workers' compensation benefits of $779 per week based on Claimant's average weekly wage of $1,560. In response, Claimant filed a review petition alleging an incorrect description of his injury and an incorrect average weekly wage.
Under the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736 as amended, 77 P.S. §§1-1041.4, 2501-2708, injured workers are entitled to receive two-thirds of their average weekly wage for a work-related injury, but their weekly compensation cannot exceed the maximum weekly compensation payable. The maximum weekly compensation payable was $779 in 2007. Even if we accept Claimant's calculation of his average weekly wage, there is no explanation as to how his compensation would increase.
Prior to Claimant's filing of the review petition, Employer filed a petition to terminate or suspend compensation benefits (termination petition) alleging that Claimant had fully recovered from the injury as of July 31, 2008. Finding the testimony of Claimant and his physicians regarding the extent of Claimant's injury to be credible, the WCJ denied the termination petition and granted the portion of the review petition alleging an incorrect description of Claimant's injury.
Claimant testified before the WCJ that at the time of his injury, he worked 48 hours per week at a rate of $21 per hour, plus an average of 24 hours per week of overtime at 1½ times his normal rate. In addition to the hours he worked as a firefighter, Claimant testified that he worked an average of 20 hours per week at $12.50 per hour as an Emergency Medical Technician (EMT) driver for Onsite Medical Ambulance (Onsite). Based on this testimony, Claimant's average weekly wage would have been $2,014. Other than his testimony, Claimant offered no evidence supporting the assertion that his average weekly wage was miscalculated. Claimant did, however, present a letter dated September 17, 2008, from his counsel to Employer's insurance carrier (AmeriHealth) requesting "raw data of [C]laimant's week by week earnings," as well as AmeriHealth's response dated September 22, 2008, which stated that Claimant "is being paid correctly by AmeriHealth as he has an Average Weekly Wage of $1,560 and a Comp Rate of $779 which is the max rate for 2007," but did not include the requested documentation. The WCJ found that Claimant's testimony regarding overtime worked for Employer and concurrent wages earned from Onsite was not credible, and because he failed to provide pay stubs, tax returns or any other documentation in support of his claim, the WCJ denied the portion of Claimant's review petition alleging an incorrect weekly wage. Claimant appealed to the Board arguing that the WCJ capriciously disregarded unrebutted evidence of his overtime earnings and concurrent employment. In the alternative, Claimant alleged that the WCJ failed to issue a reasoned decision. The Board affirmed, explaining that the WCJ offered an adequate explanation for his rejection of Claimant's testimony and issued a reasoned decision. This appeal followed.
This Court's review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. Sysco Food Services of Philadelphia v. Workers' Compensation Appeal Board (Sebastiano), 940 A.2d 1270 (Pa. Cmwlth. 2008).
Claimant contends that the WCJ capriciously disregarded his unrebutted and unobjected-to testimony concerning his overtime wages and earnings from concurrent employment. A WCJ may generally disregard the testimony of any witness, even if the testimony is uncontradicted, but does not have the discretion to capriciously disregard competent evidence without a reasonable explanation or without specifically discrediting it. Green v. Workers' Compensation Appeal Board (U.S. Airways), 28 A.3d 936, 942 (Pa. Cmwlth. 2011). A capricious disregard of evidence occurs when the fact-finder deliberately ignores relevant, competent evidence. Id. (Emphasis added). Here, the WCJ did not ignore Claimant's testimony; he just found it not credible. Moreover, Employer's failure to rebut or object to Claimant's testimony has no effect on the WCJ's ability to make such credibility determinations. Because the WCJ considered all the relevant testimony on this issue, he did not capriciously disregard any evidence.
"It is well established that the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight." Shannopin Mining Company v. Workers' Compensation Appeal Board (Sereg), 11 A.3d 623, 627 (Pa. Cmwlth. 2011).
Claimant also argues that his testimony regarding his overtime and concurrent employment was sufficient to meet his burden of proving an incorrect calculation of wages because Employer failed to offer any evidence to rebut or object to that testimony and failed to provide documentation detailing Claimant's week-by-week earnings despite being in the "best position" to do so. Claimant's argument seems to suggest that once he presented testimony, whether it was found to be credible or not, the burden shifted to the Employer to prove that its calculation of wages was correct. However, a claimant seeking modification of an NTCP always has the burden of proving that a material mistake of fact or law was made at the time the NTCP was issued. City of Harrisburg v. Workers' Compensation Appeal Board (Palmer), 877 A.2d 555, 559 (Pa. Cmwlth. 2005). A claimant is never excused from proving his or her case, even if the employer is in the "best position" to produce evidence. The burden of proving an incorrect calculation of average weekly wages remained with Claimant at all times, and he simply failed to meet this burden.
Claimant suggests that Employer's failure in its response to the September 17, 2008 letter to produce the requested "raw data" of his week-by-week earnings somehow excuses him from meeting his burden. If he was dissatisfied with Employer's response, Claimant should have inquired further or sought a subpoena. --------
In the alternative, Claimant alleges that the WCJ failed to issue a reasoned decision. Section 422(a) of the Act, 77 P.S. §834, provides the criteria for a reasoned decision:
All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.
Here, the WCJ rejected Claimant's testimony regarding his overtime earnings and concurrent employment because he determined that Claimant's testimony on those issues was not credible. The WCJ also explained that Claimant failed to provide sufficient documentary evidence in support of his claims. We believe the WCJ adequately explained his basis for rejecting Claimant's testimony on this issue, and, therefore, issued a reasoned decision.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 2nd day of March, 2012, the order of the Workers' Compensation Appeal Board, dated September 14, 2011, at No. A10-0120, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge