Opinion
No. 409 C.D. 2014
09-23-2014
United Parcel Service, Petitioner v. Workers' Compensation Appeal Board (Gladkov), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
United Parcel Service (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ) which granted Aleksander Gladkov's (Claimant) Petition to Modify Compensation Benefits (Modification Petition) and Petition to Review Compensation Benefits (Review Petition) but denied his Petition for Penalties (Penalty Petition) against Employer. For the reasons that follow, we affirm the Board.
On December 17, 2010, Claimant sustained an injury to his lower back during the course of his employment as a yard jockey with Employer. On December 30, 2010, Employer issued a Notice of Temporary Compensation Payable, which subsequently converted to a Notice of Compensation Payable, and Claimant began receiving benefits at the rate of $429.33 per week based on an average weekly wage (AWW) of $644.00. On September 1, 2011, Claimant filed a Modification Petition and Review Petition alleging that his AWW was incorrectly calculated and should be at least $885.50, and a Penalty Petition alleging that Employer violated the Workers' Compensation Act (Act) by failing to investigate the hours he was expected to work and paying insufficient benefits. Claimant also requested counsel fees on the basis that any contest by Employer was unreasonable.
The AWW was calculated by multiplying Claimant's hourly wage of $16.10 x 40 hours.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; §§2501-2708.
Before the WCJ, Claimant testified that he began his most recent employment with Employer in mid-November 2010. He testified that Employer advised him during the hiring process that because he was being hired for the holiday season, he would typically be working 10- to 12-hour shifts and sometimes 16-hour shifts. Claimant also stated that Employer told him he would be expected to work six days per week. He testified that his hourly rate was $16.10, with an overtime rate of one and one-half times his hourly rate for two to eight hours of overtime, and two times his hourly rate after 10 hours of overtime. Claimant also submitted into evidence copies of his pay stubs for the relevant period of employment.
Although Claimant testified that he had previously worked for Employer during the holiday season in 2001, the WCJ held that Claimant's AWW must be calculated in accordance with Section 309(d.2) of the Act, added by the Act of June 24, 1996, P.L. 350, as amended, 77 P.S. §582(d.2). That section provides:
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 paystubs reflected the following:
Annissa Zambruno (Zambruno), Employer's human resource representative, testified that Claimant was hired to work during Employer's peak season. She stated that she advised Claimant that he would be working five days per week, explaining that the union would file a grievance if a casual employee worked six days per week. Zambruno further testified that she related to Claimant that he would normally be working "ten to about 14 hours" per day (February 14, 2012 Hearing Transcript at 11), and that he should expect to work eight to ten hours of overtime per week. Employer also submitted into evidence a printout of wages paid to Claimant during the relevant period.
Because it was undisputed that Claimant was hired with the understanding that he would be required to work overtime, the WCJ held that Employer incorrectly calculated Claimant's AWW by failing to include overtime pay in the calculation. The WCJ concluded that a fair and reasonable calculation of Claimant's AWW was to average the number of hours Claimant worked during his last two weeks of employment prior to his injury, which resulted in an average of 48.625 hours. Although Employer miscalculated Claimant's AWW, the WCJ, noting the complicated nature of AWW calculations, found that Employer made a good faith effort in that calculation, did not violate the Act, and had a reasonable basis to contest Claimant's petitions. Accordingly, the WCJ granted Claimant's Modification Petition and Review Petition and ordered Employer to recalculate Claimant's AWW based upon a 40-hour work week plus 8.625 hours of overtime, and dismissed Claimant's Penalty Petition.
Claimant worked no overtime during his first three weeks of employment. Claimant worked 45.25 hours during his fourth week of employment and 52 hours during his fifth week of employment.
Claimant and Employer appealed the WCJ's decision to the Board, arguing that the WCJ's finding as to the number of hours Claimant was expected to work was not supported by substantial evidence. The Board held that the WCJ's findings with respect to Claimant's expected work hours were supported by substantial evidence, noting that Claimant's pay stubs, which were submitted into evidence without objection, as well as the testimony of both parties, supported those findings. Accordingly, the Board affirmed the WCJ's decision. This appeal by Employer followed.
Claimant also argued that the WCJ erred in finding Employer's contest to be reasonable and awarding no counsel fees. The Board affirmed the WCJ's finding and Claimant has not appealed that decision.
Our review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated. Namani v. Workers' Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850, 854 n.2 (Pa. Cmwlth. 2011).
On appeal, Employer argues that the WCJ erred as a matter of law by calculating Claimant's AWW using only the two weeks in which Claimant worked overtime and ignoring the initial three-week period of Claimant's employment in which he worked no overtime. Employer contends that multiplying Claimant's hourly wage by an inflated, unrepresentative sample runs contrary to the aim of Section 309 of the Act to reasonably assess a claimant's pre-injury earning potential. Employer also alleges that because Claimant's employment was not guaranteed beyond December 31, 2010, he has been compensated for far longer than he could have reasonably expected.
As noted above, Section 309(d.2) of the Act states that "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." 77 P.S. §582(d.2) (emphasis added). It is undisputed, as the WCJ found, that Claimant was expected to work overtime in his position with Employer. As such, Claimant's AWW calculation must factor in some amount of overtime. Based on Employer's witness's statements to Claimant that he could expect to normally work "ten to 14 hours" per day or eight to ten hours of overtime per week, the WCJ's finding that Claimant's AWW should be calculated based on a 48.625 hour week was supported by substantial evidence. Moreover, the question of a claimant's expected number of hours per week is a question of fact for the WCJ, whose authority over questions of credibility, conflicting evidence and evidentiary weight, is unquestioned. Lahr Mechanical v. Workers' Compensation Appeal Board (Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007).
As to Employer's contention that Claimant is being unfairly compensated because his employment was not expected to continue beyond December 31, 2010, the parties offered equivocal testimony on this issue. While Claimant testified that his employment was not guaranteed beyond the holiday season, Employer's witness conceded that it was possible that Claimant could have been retained after December 31, 2010. (February 14, 2012 Transcript at 10). In any event, whether Claimant's employment had an end date is irrelevant to his average weekly wage claim or his claim in general because what a claimant is being compensated for is loss of earning power as determined by his or her average weekly wage, not lost wages. --------
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge Senior Judge Friedman dissents. ORDER
AND NOW, this 23rd day of September, 2014, the order of the Workers' Compensation Appeal Board dated February 11, 2014, at No. A12-1067, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
| 11/14/10 through 11/20/10: | 40 hours at $16.10/hour |
| 11/21/10 through 11/27/10: | 24 hours at $16.10/hour |
| 11/28/10 through 12/4/10: | 40 hours at $16.10/hour |
| 12/5/10 through 12/11/10: | 32 hours at $16.10/hour6 overtime hours at $24.15/hour7.25 overtime hours at $32.20/hour |
| 12/12/10 through 12/18/10: | 38 hours at $16.10/hour6 overtime hours at $24/15/hour8 overtime hours at $32.20/hour |
| 12/19/10 through 12/25/10: | 8 hours at $16.10/hour |