Opinion
No. 211 C.D. 2014
09-11-2014
VNA Home Health Services of NE PA and Gallagher Bassett Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Volpicelli), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
VNA Home Health Services of NE PA and Gallagher Bassett Services, Inc. (collectively, Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) on a Penalty Petition filed by Robert Volpicelli (Claimant) denying Employer's request to correct typographical errors in a prior WCJ order and imposing a penalty on Employer for violation of that prior order. For the reasons set forth below, we reverse.
On February 27, 2012, Claimant, who worked for Employer as a physical therapist, fell and broke his leg and hip while making a house call for Employer. (Notice of Compensation Payable, Reproduced Record (R.R.) at 1a; 10/4/12 Hearing Transcript (10/4/12 H.T.) at 9-10, R.R. at 35a-36a.) Employer, based on an average weekly wage of $2,738.33, paid Claimant disability benefits under the Workers' Compensation Act (the Act) of $888 per week for this work-related injury, the maximum rate under the Act, until early June 2012. (Notice of Compensation Payable, R.R. at 1a; 7/3/12 Hearing Transcript (7/3/12 H.T.) at 6-7, R.R. at 10a-11a; 10/4/12 H.T. at 12-13, 32, R.R. at 38a-39a, 58a.) On June 9, 2012, Claimant returned to work with Employer, and Employer timely filed a Notification of Suspension of Benefits and ceased paying Claimant disability benefits. (10/4/12 H.T. at 10, 25, 36, R.R. at 36a, 51a, 62a.) Claimant timely filed a challenge to the suspension of benefits. (Id. at 36, R.R. at 62a.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
See 42 Pa. B. 112 (2012).
On July 3, 2012, WCJ Peleak held a hearing on Claimant's challenge to the suspension of benefits. At that hearing, Claimant did not dispute that he had returned to work, stated that he was receiving an annual salary of $83,000 from a job with another employer, and estimated that he was making 25 house calls for Employer per week for which Employer was paying him $53 per house call. (7/3/12 H.T. at 13-15, R.R. at 17a-19a.) Although this amount would exceed the average weekly wage of $2,738.33 listed in the Notice of Compensation Payable, Claimant asserted that he had continuing loss of earnings because Employer had understated his average weekly wage by failing to include over $50,000 per year of additional income that he had from pre-injury work for another company. (Id. at 5- 8, R.R. at 9a-12a.) Employer contended that the additional pre-injury income was income from self-employment that is not to be included in computing Claimant's average weekly wage. (Id. at 10-11, R.R. at 14a-15a.) WCJ Peleak did not resolve this dispute and set the matter for further hearing. On July 30, 2012, Claimant filed a Penalty Petition, asserting that Employer had incorrectly computed Claimant's average weekly wage and had unilaterally stopped paying disability compensation despite continued earnings loss. (Penalty Petition, R.R. at 24a-26a.)
An annual salary of $83,000 divided by 52 weeks would constitute $1,596.15 per week and 25 house calls per week times $53.00 would amount to an additional $1,325.00 per week, resulting in weekly earnings of $2,921.15.
On October 4, 2012, WCJ Peleak held a hearing on both Claimant's challenge to the suspension of benefits and his Penalty Petition. At this hearing, Claimant testified that his annual salary from his other post-injury employer was $82,300 and that his post-injury earnings from Employer were only $400 per week, consisting of an average of eight house calls for which he was paid $50 per house call. (10/4/12 H.T. at 40-43, R.R. at 66a-69a.) Claimant admitted that his pre-injury average weekly wage from Employer was $2,738.33. (Id. at 42, R.R. at 68a.) Claimant also testified that he had approximately $51,000 per year in earnings from the other company for which he worked before he was injured and contended that this additional pre-injury income should be included in determining his loss of earnings after his return to work. (Id. at 11, 31-32, 35-36, R.R. at 37a, 57a-58a, 61a-62a.)
In light of Claimant's testimony concerning his post-injury earnings, which amounted to $1,982.69 per week, Employer agreed at the October 4, 2012 hearing that Claimant had a loss of earnings of approximately $800 per week and that it would reinstate Claimant to partial disability benefits retroactive to his June 2012 return to work in an amount based on the difference between $1,982.69 per week and Claimant's pre-injury $2,738.33 average weekly wage from Employer. (10/4/12 H.T. at 43-44, R.R. at 69a-70a.) Claimant's attorneys agreed to accept this as an interim measure pending resolution of the issue of Claimant's additional pre-injury income, and WCJ Peleak stated at the hearing that he would enter an order that Employer pay partial disability benefits in accordance with that agreement. (Id. at 44-46, R.R. at 70a-72a.) The record of the October 4, 2012 hearing sets forth the following colloquy:
ATTORNEY WYNN [Employer's Attorney]:
Your Honor, I'm willing to stipulate to an ongoing partial based upon what he's testified to today. ... I would agree -- and you can put this in an Order until we sort out the specific number, that we would agree that he is making --- he's got a salary of $82,300 at Saint Luke's Manor. I divided that out to an average weekly wage of $1,582.69. He just testified that he makes $400 per week for VNA. We'll just leave Erwine's [Claimant's other pre-injury income] out of it. We won't count it in the pre-injury or in the post earnings. That means he's got $1,982.69 in weekly earnings since he came back to work. Compare to that the pre-injury average weekly wage of $2700.38 [sic]. He's got a loss of about $800 a week. Whatever that is we would agree to reinstate him at that partial from June 9th or 10th forward. But in the meantime, I would like to get wage verification from everybody so we can get the exact numbers.
JUDGE PELEAK:
Is that agreeable?
ATTORNEY ROGERS [Claimant's Attorney]:
Well, it's agreeable. It would certainly put money in my client's pocket. ... And Your Honor, I don't want us accepting --- and my client needs the money. So that part is acceptable as to start to frame the penalties and the interest and so one [sic]. I don't want that to be an understanding that I agree as to the Erwine's issue and I think the Judge understands that.
(Id. at 43-46, R.R. at 69a-72a) (emphasis added). WCJ Peleak did not rule at the hearing on the issue of whether the additional pre-injury income should be considered in determining Claimant's loss of earnings and partial disability benefits, and directed the parties to brief that issue. (Id. at 32-40, 46, R.R. at 58a-66a, 72a.)
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JUDGE PELEAK:
Let me at least issued [sic] the Order on the Challenge that I think you two are in agreement on, you know, St. Luke's and ---. I would still appreciate from both of you some type of outline of your position and whether some of this work is self-employment or whether it's concurrent.
ATTORNEY ROGERS:
I understand that.
JUDGE PELEAK:
Let's do it that way. It gives everybody a little break.
On October 12, 2012, WCJ Peleak issued a decision on Claimant's challenge to the suspension of benefits. In that decision, WCJ Peleak stated that his ruling was based on Employer's stipulation to the amount of Claimant's loss of earnings. (October 12, 2012 WCJ Decision, Finding of Fact (F.F.) ¶4, Conclusion of Law (C.L.) ¶2.) However, instead of the loss of earnings to which Employer stipulated at October 4, 2012 hearing, the difference between $1,982.69 per week and $2,738.33 per week, which would be $755.64 per week, the October 12, 2012 WCJ Decision stated that Employer had stipulated to a loss of earnings of $1,982.00 per week and ordered partial disability based on a stipulated $1,982.00 per week loss of earnings. The October 12, 2012 WCJ Decision made the following findings and rulings:
4. During the course of the hearing, the parties disputed the Claimant's average weekly wage, however, the employer, through counsel, stipulated that based on the Claimant's testimony, the Claimant was experiencing a loss of earnings in the amount of $1,982.00 per week, and, therefore, the employer, through its carrier, would reinstate partial disability benefits to the Claimant, based on that difference of earning capacity, commencing June 9, 2012, when the Claimant returned to employment.(Id., F.F. ¶4, C.L. ¶2 and Order) (emphasis added). The October 12, 2012 WCJ Decision did not address the disputed issue concerning Claimant's additional pre-injury income, and stated that briefs were to be filed on that issue and that a further hearing would be held on the Penalty Petition. (Id., F.F. ¶5.)
* * *
2. Because it has been stipulated that the Claimant is suffering a loss of earnings as a result of his work injury, the employer, through its carrier, is willing to reinstate the partial disability benefits at this time, an appropriate Order should be entered.
* * *
ORDER
AND NOW, the Claimant's Challenge is GRANTED, and the employer, through its workers' compensation carrier, shall reinstate benefits to the Claimant for partial disability based on loss of wages of $1,982.00 per week, minus Twenty (20%) percent that shall be paid directly to Claimant's counsel, Lowery and Rogers.
Following the October 4, 2012 hearing and October 12, 2012 WCJ Decision, Employer reinstated Claimant to partial disability status, but did not pay him at the rate for an earnings loss of $1,982.00 per week as ordered by the October 12, 2012 WCJ Decision, which would entitle Claimant to the maximum weekly benefit of $888. (July 31, 2013 WCJ Decision, F.F. ¶¶3-4; 3/19/13 Hearing Transcript (3/19/13 H.T.) at 5-9, R.R. at 79a-83a.) Although it did not file any motion or request to correct the October 12, 2012 WCJ Decision within twenty days, Employer paid Claimant benefits at the rate for an earnings loss of the difference between $1,982.69 per week and $2,738.33 per week, as stipulated at the October 4, 2012 hearing, paying Claimant partial disability benefits of $403 per week and paying the remaining twenty percent of benefits to Claimant's counsel. (July 31, 2013 WCJ Decision, F.F. ¶¶2, 4; 3/19/13 H.T. at 5-9, R.R. at 79a-83a.)
On March 19, 2013, WCJ Peleak held a hearing on Claimant's Penalty Petition. Prior to this hearing, Employer made a request for correction of the October 12, 2012 WCJ Decision. (3/19/13 H.T. at 5, R.R. at 79a.) At the hearing, Claimant argued that the Penalty Petition should be granted because Employer had not paid benefits at the $888 per week rate required by the October 12, 2012 WCJ Decision and contended that the October 12, 2012 WCJ Decision could not be amended because Employer had filed no appeal or request for amendment within 20 days. (Id. at 6-14, R.R. at 80a-88a.) Claimant also argued, alternatively, that Employer was liable for penalties because Claimant's post-injury loss of earnings was in fact in an amount entitling him to the maximum $888 per week benefit. (Id. at 6, 10, 14, R.R. at 80a, 84a, 88a.) WCJ Peleak expressed some concern at the hearing that the October 12, 2012 WCJ Decision may have been inaccurate, but did not rule on the issue at the hearing and reserved judgment both on whether the October 12, 2012 WCJ Decision should be amended and on whether Claimant's actual loss of earnings was greater than the amount for which Employer was paying benefits. (Id. at 5-6, 11-14, R.R. at 79a-80a, 85a-88a.)
On July 31, 2013, following reassignment of the case, WCJ Harris granted Claimant's Penalty Petition and ordered Employer to pay Claimant "an amount sufficient to bring his compensation in line with the $888.00 per week that was called for by Judge Peleak's October 12, 2012 order," to pay Claimant "a penalty of twenty-five percent (25%) of all past due compensation," and to "continue to pay the Claimant $888.00 per week into the indefinite future, or until such time as his benefits are modified, suspended, or terminated." (July 31, 2013 WCJ Decision at 2.) The WCJ based this ruling solely on the ground that Employer had failed to comply with the October 12, 2012 WCJ Decision. (Id., F.F. ¶¶1, 3-4, C.L. ¶¶2, 4.) The WCJ rejected Employer's request to amend the October 12, 2012 WCJ Decision on the ground that correction of the decision was barred because Employer had failed to seek such amendment within twenty days or file a timely appeal from the October 12, 2012 WCJ Decision. (Id., F.F. ¶¶2, 4, C.L. ¶¶2-3.) WCJ Harris made no ruling in the July 31, 2013 WCJ Decision on whether the references to a $1,982.00 per week wage loss in the October 12, 2012 WCJ Decision were typographical errors nor did he make any findings or ruling on the amount of Claimant's actual loss of earnings.
Employer appealed to the Board, and on January 14, 2014, the Board affirmed the July 31, 2013 WCJ Decision. The Board held that typographical errors in a WCJ decision may be corrected at any time. (Board Opinion at 5-6.) The Board, however, ruled that the finding of a $1,982.00 per week wage loss and the order that Employer pay benefits based on a $1,982.00 per week wage loss in the October 12, 2012 WCJ Decision were substantive errors, not typographical errors, and that Employer's request to correct the October 12, 2012 WCJ Decision was therefore barred as untimely. (Id. at 7-8.) The Board upheld the penalty on the ground that Employer was not entitled to disregard the October 12, 2012 WCJ Decision even if that decision was erroneous. (Id. at 3-5.)
On appeal to this Court, Employer argues that WCJ Harris and the Board erred in not correcting the October 12, 2012 WCJ Decision to provide that the stipulated wage loss on which Employer must pay partial disability benefits is the difference between $1,982.69 per week and $2,738.33 per week. We agree.
Our review is limited to determining whether there has been an error of law or violation of constitutional rights and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Varkey v. Workers' Compensation Appeal Board (Cardone Industries & Fireman Fund), 827 A.2d 1267, 1272 n.6 (Pa. Cmwlth. 2003).
The Special Rules of Administrative Practice and Procedure Before Workers' Compensation Judges permit a party to file a motion for correction or amendment of a decision to correct "a typographical or clerical error or obvious omission or error on the part of the judge," but require that the "request for correction or amendment shall be made within 20 days of the date of service of notice of the decision and order." 34 Pa. Code § 131.112(a). The law, however, is well established that a party may also seek and obtain correction of a purely typographical or mechanical error in a previous WCJ decision at any time under Section 413(a) of the Act, despite the fact that the party failed to timely appeal or seek such correction of the decision within the twenty day period provided by the rules. See Joyce v. Workers' Compensation Appeal Board (Stylette Plastics, Inc.), 709 A.2d 1011, 1013 n.3 (Pa. Cmwlth. 1998); Johnson v. Workers' Compensation Appeal Board (Budd Co.), 693 A.2d 1015, 1017 (Pa. Cmwlth. 1997); Drozd v. Workmen's Compensation Appeal Board (The Lion, Inc.), 485 A.2d 96, 97-98 (Pa. Cmwlth. 1984).
Section 413(a) of the Act provides:
A workers' compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers' compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect.77 P.S. § 771 (emphasis added). In Drozd, we held that Section 413(a) applies to and authorizes correction of mechanical errors in a prior workers' compensation decision or order outside of the time allotted for an appeal, and ordered correction of a misstated weekly benefit amount in a referee's award, even though the correction was sought more than four years after the award was final and all appeals from the award had ended. 485 A.2d at 97-99. In Johnson, we held that Section 413(a) permits the correction of typographical, clerical or mechanical errors in a WCJ decision "at any time," and reversed the denial of a request to correct a typographical error in an order that listed the wrong year for the reinstatement of the claimant's benefits, even though the request for correction was first made seven months after the WCJ decision. Johnson, 693 A.2d at 1017-18.
In contrast, Section 413(a) of the Act does not apply where the alleged error involves a change in the WCJ's factual or legal analysis or requires additional factual findings or conclusions of law, and correction of such substantive errors in a WCJ decision may be made only within twenty days and through appeal or by written agreement of both parties. Varkey v. Workers' Compensation Appeal Board (Cardone Industries & Fireman Fund), 827 A.2d 1267, 1273 (Pa. Cmwlth. 2003) (error was not typographical or clerical where it "obviously evidenced a change in analysis"); Joyce, 709 A.2d at 1014 (Section 413(a) of the Act did not apply where the WCJ "did not make a mathematical or mechanical error in applying the Act, but instead she addressed a question of law that was unsettled at the time and not specifically addressed by the Act"); Butcher v. Workmen's Compensation Appeal Board (Treadway Resort Inn), 517 A.2d 1023, 1026 (Pa. Cmwlth. 1986) (alleged error was not merely mechanical and Section 413(a) of the Act did not apply where the requested correction required findings of fact and conclusions of law on issue not addressed in prior decision).
Here, it is clear from the transcript of the October 4, 2012 hearing and the language of the October 12, 2012 WCJ Decision that the portions of the October 12, 2012 WCJ Decision that Employer sought to correct are purely transcriptional, typographical errors. No change in the legal or factual analysis in the October 12, 2012 WCJ Decision or additional findings by the WCJ were sought by Employer. The October 12, 2012 WCJ Decision made no determination or evaluation as to the amount of Claimant's loss of earnings, and, instead, only set forth the terms of a stipulation made by Employer at the October 4, 2012 hearing and ordered that Employer comply with that stipulation. The only finding in the October 12, 2012 WCJ Decision concerning Claimant's loss of earnings was that "the employer, through counsel, stipulated that based on the Claimant's testimony, the Claimant was experiencing a loss of earnings in the amount of $1,982.00 per week." (October 12, 2012 WCJ Decision, F.F. ¶4) (emphasis added). The October 12, 2012 WCJ Decision expressly states that the order that Employer "reinstate benefits to the Claimant for partial disability based on loss of wages of $1,982.00 per week" was entered "[b]ecause it has been stipulated" and to provide benefits in accordance with that stipulation. (Id., C.L. ¶2 and Order.)
The transcript of the October 4, 2012 hearing unequivocally shows this stipulation that the October 12, 2012 WCJ Decision memorialized was a stipulation that Claimant had "$1,982.69 in weekly earnings since he came back to work" and that he had a loss of the difference between that $1,982 per week and the average weekly wage of $2738.33 set forth in the Notice of Compensation Payable, "a loss of about $800 a week." (10/4/12 H.T. at 43-44, R.R. at 69a-70a) (emphasis added). Nowhere in the record is there any reference to a stipulation that Claimant had an earnings loss of $1,982 per week or any suggestion of any such stipulation. While Claimant contended that his pre-injury average weekly wage was understated and that he had an earnings loss that would entitle him to the maximum $888 per week benefit, he did not at any time contend that he had an earnings loss of $1,982 per week. (7/3/12 H.T. at 9, R.R. at 13a; 10/4/12 H.T. at 11, 31-32, 35-36, R.R. at 37a, 57a-58a, 61a-62a; 3/19/13 H.T. at 6, R.R. at 80a.) The only reference anywhere in the record to $1,982 per week is to Claimant's post-injury earnings, not his wage loss. (10/4/12 H.T. at 44, R.R. at 70a.)
Because the reference in the October 12, 2012 WCJ Decision to a stipulated wage loss of $1,982.00 per week and the order that benefits be paid for that stipulated wage loss are typographical misstatements, Employer was not barred from seeking their correction and was entitled to relief under Section 413(a) of the Act, modifying the October 12, 2012 WCJ Decision to correctly state the stipulated wage loss and to order that Employer pay benefits based on loss of wages of the difference between $1,982.69 per week and $2,738.33. Johnson, 693 A.2d at 1017-18; Drozd, 485 A.2d at 97-98.
Claimant argues that Section 413(a) and this Court's decision in Johnson do not apply here because Employer did not file a Petition to Modify. We do not agree. Employer made a request to the WCJ to correct the October 12, 2012 WCJ Decision before the March 19, 2013 hearing on Claimant's Penalty Petition. (3/19/13 H.T. at 5, R.R. at 79a.) The fact that this request may not have been formally filed or designated as a Petition to Modify is immaterial. Section 413(a) permits correction of errors "upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers' compensation judge." 77 P.S. § 771 (emphasis added). The record shows that WCJ Peleak understood Employer's request as a petition seeking correction of the October 12, 2012 WCJ Decision under Section 413(a). (3/19/13 H.T. at 12-13, R.R. at 86a-87a.)
The Board's statement that "there is no evidence in the record" that Employer sought correction of the October 12, 2012 WCJ Decision "prior to the hearing on March 19, 2013, during which Defendant first raised its objections to the amount of the weekly compensation award" (Board Opinion at 4) is contrary to the record in this case. While the record contains only the transcripts of the hearings before the WCJ and not the filings submitted by parties to the WCJ in these proceedings, WCJ Peleak stated at the outset of the March 19, 2013 hearing that he had received a brief from Employer at some point prior to the hearing in which Employer asserted that "the amount of compensation due the Claimant [would] be about $500-and-some" and that with respect to "the last Order I issued ... you were asking I amend it because it didn't accurately reflect loss of wages." (3/19/13 H.T. at 5, R.R. at 79a.)
Moreover, this Court has made clear that in workers' compensation cases, where a party has sought relief and demonstrated a right to relief, the form of the filing is not controlling and does not prevent the WCJ from granting that relief. US Airways and Reliance National v. Workers' Compensation Appeal Board (Rumbaugh), 808 A.2d 1064, 1068 (Pa. Cmwlth. 2002), aff'd on other grounds, 854 A.2d 411 (Pa. 2004); Johnson, 693 A.2d at 1017 n.6; Blue Bell Printing v. Workmen's Compensation Appeal Board (Montgomery Publishing Co.), 539 A.2d 933, 935 (Pa. Cmwlth. 1988). Indeed, this Court held in Johnson that correction of an error in a WCJ decision was required under Section 413(a), even though the claimant had filed no petition at all before the WCJ and first raised the error informally before the Board. Johnson, 693 A.2d at 1016-17.
It was therefore error to deny Employer's request to correct the October 12, 2012 WCJ Decision. Accordingly, the Board's order must be reversed insofar as it affirmed the provisions of the July 31, 2013 WCJ Decision requiring compliance with the typographical error, and the provisions of the July 31, 2013 WCJ Decision ordering that Employer "shall pay to the Claimant an amount sufficient to bring his compensation in line with the $888.00 per week that was called for by Judge Peleak's October 12, 2012 order" and that Employer "shall continue to pay the Claimant $888.00 per week into the indefinite future, or until such time as his benefits are modified, suspended, or terminated, as according to law" (July 31, 2013 WCJ Decision at 2) must be vacated.
Employer also argues that no penalty should have been awarded because it paid Claimant all benefits that were owed under the stipulation that the October 12, 2012 WCJ Decision enforced and the only unpaid amounts were the result of the typographical error. These facts do not preclude a penalty award or the amount of the penalty imposed by the July 31, 2013 WCJ Decision.
Employer unilaterally disregarded a WCJ order, rather than immediately calling the error to the WCJ's attention. Absent a supersedeas, failure to comply with an order awarding benefits is a violation of the Act, and the fact that an order is ultimately reversed does not excuse the employer from complying with the order while it is in effect. Moore v. Workmen's Compensation Appeal Board (Reading Paperboard Corp.), 676 A.2d 690, 694-95 (Pa. Cmwlth. 1996); Winkelmann v. Workmen's Compensation Appeal Board (Estate of O'Neill), 646 A.2d 58, 60 (Pa. Cmwlth. 1994). Where a claimant has shown that the employer violated the Act, penalties may be awarded even if the violation caused the claimant no economic harm. Jordan v. Workers' Compensation Appeal Board (Philadelphia Newspapers, Inc.), 921 A.2d 27, 41 & n.10 (Pa. Cmwlth. 2007); Palmer v. Workers' Compensation Appeal Board (City of Philadelphia), 850 A.2d 72, 76-78 (Pa. Cmwlth. 2004). Penalties may therefore be awarded for unilateral failure to pay in accordance with a later-reversed award based on and as a percentage of that award, even where the claimant is not entitled to the underlying benefits. Gartner v. Workers' Compensation Appeal Board (Kmart Corp.), 796 A.2d 1056, 1059 (Pa. Cmwlth. 2002); Winkelmann, 646 A.2d at 60. It would, accordingly, be within the WCJ's discretion to award a penalty against Employer for violation of the uncorrected October 12, 2012 WCJ Decision and to base that penalty on the amounts set forth in the uncorrected October 12, 2012 WCJ Decision.
In Cozzone v. Workers' Compensation Appeal Board (PA Municipal/East Goshen Township), 41 A.3d 105 (Pa. Cmwlth. 2012), aff'd on other grounds, 73 A.3d 526 (Pa. 2013), this Court held that a penalty for unilaterally ceasing payment of benefits was invalid because the benefits were not in fact owed under the Act, stating as an alternative holding that "even if Employer violated the Act by unilaterally ceasing payment, there is no past compensation due Claimant upon which an award of penalties can be assessed." 41 A.3d at 113-14. That case, however, is distinguishable. In Cozzone, the employer had not violated any order awarding benefits and there was no compensation due under any award at the time of the penalty adjudication. Here, Employer violated an order with which it was obligated to comply until it obtained correction of the order, and compensation was due and unpaid under that order. --------
The penalty award here, however, was based not only on the fact that Employer did not comply with the October 12, 2012 WCJ Decision, but also on the WCJ's conclusion that there was no merit to Employer's request to correct the October 12, 2012 WCJ Decision. (July 31, 2013 WCJ Decision, F.F. ¶¶2, 4, C.L. ¶¶2-3.) Even where it is established that the employer has violated an order requiring payment of benefits, whether a penalty is appropriate and the amount of the penalty are matters within the discretion of the WCJ. Budd Co. v. Workers' Compensation Appeal Board (Kan), 858 A.2d 170, 176 (Pa. Cmwlth. 2004); Candito v. Workers' Compensation Appeal Board (City of Philadelphia), 785 A.2d 1106, 1108 (Pa. Cmwlth. 2001); Moore, 676 A.2d at 695. We must therefore also reverse the Board's affirmance of the penalty award and remand so that the WCJ can exercise his discretion as to whether a penalty should be imposed on Employer for its violation of the uncorrected October 12, 2012 WCJ Decision and the amount of any such penalty, unaffected by the erroneous ruling that the October 12, 2012 WCJ Decision was not subject to correction.
We note that our ruling that the October 12, 2012 WCJ Decision must be corrected does not hold that Claimant's wage loss is $755.64 per week or limit Claimant to partial disability benefits based on that amount. Claimant's attorney agreed to Employer's stipulation only as a minimum and as an interim order pending the WCJ's resolution of the dispute concerning Claimant's average weekly wage, and made clear that he did not waive his contention that Claimant's loss of earnings was substantially higher and would entitle him to the maximum benefit. (10/4/12 H.T. at 44-45, R.R. at 70a-71a.) The October 12, 2012 WCJ Decision left this issue unresolved, and the July 31, 2013 WCJ Decision did not address it because the typographical error in the October 12, 2012 WCJ Decision gave Claimant the maximum benefit of $888 per week. Because the correction of the October 12, 2012 WCJ Decision brings Claimant's benefits below the maximum weekly benefit, the WCJ on remand must also address the issue of Claimant's average weekly wage, including whether Claimant's additional pre-injury income that Employer did not include in his average weekly wage is income from concurrent employment or income from self-employment, and must make a determination of the amount of Claimant's loss of earnings and partial disability benefits.
For the foregoing reasons, we reverse the order of the Board and remand this case for further proceedings consistent with this opinion.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 11th day of September, 2014, the order of the Workers' Compensation Appeal Board (Board) in the above matter is REVERSED. This case is REMANDED to the Board to remand to a Workers' Compensation Judge (WCJ) for correction of the October 12, 2012 WCJ Decision to state that stipulated loss of wages on which VNA Home Health Services of NE PA and Gallagher Bassett Services, Inc. (collectively, Employer) are ordered to pay partial disability benefits is the difference between $1,982.69 and $2,738.33 per week, $755.64 per week, and with instructions to vacate the July 31, 2013 WCJ Decision.
The Board, on remand, shall also direct the WCJ to issue a further decision on Claimant Robert Volpicelli's challenge to the suspension of disability benefits, determining his weekly loss of earnings and the amount of his partial disability benefits, and direct the WCJ to issue a new ruling on Claimant's Penalty Petition, in accordance with the foregoing opinion.
Jurisdiction relinquished.
/s/_________
JAMES GARDNER COLINS, Senior Judge