Opinion
No. 538 C.D. 2013
11-08-2013
Terri Wolfinger, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Terri A. Wolfinger (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) holding that she was ineligible to elect an alternate base year under Section 204(b) of the Pennsylvania Workers' Compensation Act, 77 P.S. §71(b), for purposes of calculating her weekly unemployment compensation benefit. In doing so, the Board affirmed the Referee's decision that Claimant's earnings met the "monetary and credit week requirements" of Section 401(a) of the Unemployment Compensation Law and, thus, she could not choose another year when her earnings were higher. We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §71(b). It states:
(b) For the exclusive purpose of determining eligibility for compensation under the act of December 5, 1936 (2nd Sp. Sess., 1937 P.L. 2897, No 1), known as the "Unemployment Compensation Law," any employe who does not meet the monetary and credit week requirements under section 401(a) of that act due to a work-related injury compensable under this act may elect to have his base year consist of the four complete calendar quarters immediately preceding the date of the work-related injury.77 P.S. §71(b).
Section 401(a) was enacted by the Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, and it provides, in relevant part, as follows:
Compensation shall be payable to any employe who is or becomes unemployed, and who--
(a) Satisfies both of the following requirements:
43 P.S. §801(a).(1) Has, within his base year, been paid wages for employment as required by section 404(c) of this act.
(2) Except as provided in section 404(a)(3), not less than forty-nine and one-half per centum (49.5%) of the employe's total base year wages have been paid in one or more quarters, other than the highest quarter in such employe's base year.
Claimant began working for SuperValu (Employer) on October 29, 1979, as a parts purchaser. On November 4, 2009, Claimant suffered a work injury. At the time of her injury, Claimant was earning $19.80 per hour; in the year prior to her injury, Claimant's gross annual wages were $42,764.50. In December 2009, Claimant was cleared for light duty work but was informed that there was no light duty work available with Employer. Claimant found part-time work tending bar at the Days Inn. Claimant also began receiving workers' compensation benefits in the amount of $556 per week in December 2009.
On November 4, 2010, Claimant attempted to return to work for Employer, but she was sent home after a day and a half because she could not do the lifting required by the job. On June 5, 2011, Claimant took a job as a bartender with NK Hospitality. Claimant worked 10 to 12 hours per week for NK Hospitality at a rate of $7.25 per hour. On July 6, 2012, Claimant returned to medium duty work for Employer, again earning $19.80 per hour. Claimant's employment was terminated on September 7, 2012.
On September 30, 2012, Claimant filed for unemployment compensation benefits. The UC Service Center issued a Notice of Determination finding Claimant eligible for 26 weeks of benefits at a rate of $124 per week. In making its determination, the UC Service Center found that Claimant's base year began on April 1, 2011, and ended on March 31, 2012. During that time period, Claimant earned $8,687 in gross wages, broken down as follows: $512 in the second quarter of 2011; $3,062 in the third quarter of 2011; $3,037 in the fourth quarter of 2011; and $2,075 in the first quarter of 2012. Claimant appealed the UC Service Center's determination, claiming that she was entitled to move her base year to the year before she suffered her work injury with Employer.
Section 4(a) of the Unemployment Compensation Law defines "base year" as "the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year." 43 P.S. §753(a).
On December 21, 2012, a hearing was held before the Referee. Employer did not participate in the hearing; Claimant was the only witness. She testified about her employment with Employer and NK Hospitality, including her earnings from each employer. She testified that she had 33 credit weeks for the period of April 1, 2011, to March 31, 2012. The Referee affirmed the determination of the UC Service Center, concluding that Claimant could not shift her base year. Claimant appealed to the Board, which affirmed on the basis of the Referee's findings of fact and conclusions of law. Claimant now petitions this Court for review.
A hearing was also held on December 7, 2012, solely to determine the timeliness of Claimant's appeal. After the Referee determined the appeal was timely, he continued the hearing until December 21, 2012, for proceedings on the merits.
The Board modified the Referee's decision to correct two typographical errors. First, the Board corrected the Referee's award from $142 to $124. Second, the Board corrected the Referee's reference to Section 402(b) of the Workers' Compensation Act to Section 204(b).
Our scope of review is limited to determining whether the Board's adjudication is in violation of constitutional rights, errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987).
On appeal, Claimant argues that the Board erred in holding that she was ineligible to take advantage of Section 204(b) of the Workers' Compensation Act, 77 P.S. §71(b), which authorizes persons injured on the job to move their base year for purposes of unemployment compensation. She contends that the Board's strict reading of Section 204(b) of the Act is inconsistent with the humanitarian purposes of the Workers' Compensation Act and the Unemployment Compensation Law.
We begin by reviewing the applicable statutory law. Section 204(b) of the Workers' Compensation Act allows a worker who has suffered a compensable work injury to use the base year preceding the injury to calculate her unemployment benefit. Section 204(b) states:
For the exclusive purpose of determining eligibility for compensation under the [Unemployment Compensation Law] ... any employe who does not meet the monetary and credit week requirements under section 401(a) of that [Law] due to a work-related injury compensable under this act may elect to have his base year consist of the four complete calendar quarters immediately preceding the date of the work-related injury.77 P.S. §71(b) (emphasis added). Section 401(a) of the Unemployment Compensation Law requires that no more than 50.5% of a claimant's base year wages can come from a single quarter and incorporates the requirements of Section 404 of the Unemployment Compensation Law. The minimum wages needed to qualify for unemployment compensation are calculated in accordance with Section 404(a). A claimant must have at least 18 credit weeks to receive unemployment compensation benefits. See Section 404(c) of the Law, 43 P.S. §804(c).
See n.2, supra.
Section 404(a) provides, in relevant part, as follows:
(a)(1) The employe's weekly benefit rate shall be computed as (1) the amount appearing in Part B of the Table Specified for the Determination of Rate and Amount of Benefits on the line on which in Part A there appears his "highest quarterly wage," or (2) fifty per centum (50%) of his full-time weekly wage, whichever is greater. Notwithstanding any other provision of this act, if an employe's weekly benefit rate, as calculated under this paragraph, is less than seventy dollars ($70), he shall be ineligible to receive any amount of compensation. If the employe's weekly benefit rate is not a multiple of one dollar ($1), it shall be rounded to the next lower multiple of one dollar ($1).43 P.S. §804(a).
***
(3) If an employe's weekly benefit rate as determined under clause (1) of paragraph (1) of this subsection, or redetermined under paragraph (2) of this subsection, as the case may be, is less than the maximum weekly benefit rate and the employe's base year wages are insufficient to qualify him under subsection (c) of this section but are sufficient to qualify him for any one of the next two lower weekly benefit rates, his weekly benefit rate shall be redetermined at the highest of such next lower rates.
Section 404(c) provides as follows:
(c) If an otherwise eligible employe has base year wages in an amount equal to or in excess of the amount of qualifying wages appearing in Part C of the Table Specified for the Determination of Rate and Amount of Benefits on the line on which in Part B there appears his weekly benefit rate, as determined under subsection (a) of this section, and had eighteen (18) or more credit weeks during his base year, he shall be entitled during his benefit year to the amount appearing in Part B on said line multiplied by the number of credit weeks during his base year, up to a maximum of twenty-six (26). Notwithstanding any other provision of this act, any employe with less than eighteen (18) credit weeks during the employe's base year shall be ineligible to receive any amount of compensation.43 P.S. §804(c) (emphasis added).
Claimant's standard base year under Section 4(a) of the Unemployment Compensation Law was April 1, 2011, to March 31, 2012. She had at least 18 credit weeks. Her highest quarterly wage during that time was $3,062 and her total wages were $8,687. Section 404(e)(1) of the Unemployment Compensation Law provides that a claimant whose highest quarter's earnings is between $3,038 and $3,062 is entitled to compensation in the amount of $124 per week, so long as her total earnings in the base year equal $6,064. 43 P.S. §804(e)(1). Because Claimant earned more than the minimum wages in the base year, she was entitled to $124 per week of unemployment benefits. Stated another way, Claimant met the monetary and credit week requirements of Section 401(a) of the Unemployment Compensation Law and, thus, was entitled to unemployment compensation. This rendered her ineligible to elect an alternate base year under Section 204(b) of the Workers' Compensation Act, which would yield a higher rate of unemployment compensation.
See n.3, supra, for the definition of "base year."
Claimant concedes, as she must, that she met the monetary and credit requirements of Section 401(a). Claimant argues, however, that not allowing her to shift her base year is an unduly harsh result, and that she is essentially being punished for obtaining part-time work after Employer was unable to provide her work within her medical restrictions. Although Claimant raises a compelling argument, we are not at liberty to ignore the plain language of Section 204(b) of the Workers' Compensation Act, which is explicit in its requirement that a claimant may shift her base year only if she fails to meet the monetary and credit requirements of the Unemployment Compensation Law. Claimant met the monetary and credit requirements and, thus, was not entitled to shift her base year.
Claimant urges this Court to follow the Pennsylvania Supreme Court's reasoning in Hannaberry HVAC v. Workers' Compensation Appeal Board (Snyder, Jr.), 575 Pa. 66, 834 A.2d 524 (2003). In Hannaberry, the claimant had worked for the employer part-time while he was in school and then switched to full-time after he graduated. He suffered a catastrophic work injury three months later, which rendered him a quadriplegic. The Workers' Compensation Judge and the Workers' Compensation Appeal Board determined that the claimant's part-time wages should not be included in the computation of his average weekly wage. This Court reversed, holding that Section 309 of the Workers' Compensation Act, 77 P.S. §582, allowed for no distinction between part-time and full-time wages in the calculation of a claimant's average weekly wage.
Section 309 of the Workers' Compensation Act provides several different methods for computing average weekly wages based upon different types of employment relationships. For claimants paid a fixed weekly amount at the time of their injury, the average weekly wage will be that weekly amount. For claimants paid a fixed monthly amount at the time of their injury, the average weekly wage will be that monthly amount multiplied by twelve and divided by fifty-two. For claimants paid a fixed annual amount at the time of their injury, the average weekly wage will be that annual amount divided by fifty-two. For a claimant who is not paid in one of those three manners, the average weekly wage shall be computed by taking the wages of the highest three of the last four consecutive thirteen week periods preceding the injury, dividing each by thirteen and then averaging those three amounts. For a claimant who is not paid in one of the first three manners and who has not been employed for three consecutive periods of thirteen weeks, the average weekly wage shall be computed by averaging the amount of wages earned in any complete thirteen week period that the claimant worked for employer. For a claimant who is not paid in one of the first three manners and has worked less than thirteen weeks, the average weekly wage shall be the wage paid multiplied by the number of hours the employee was expected to work. 77 P.S. §582. --------
On appeal, the claimant argued that a rigid application of Section 309 to the unique facts of his case conflicted with the humanitarian purpose of the Workers' Compensation Act. The Supreme Court agreed, holding that the claimant fell into an ambiguous "gap in the legislative scheme" because the Workers' Compensation Act "does not address ... the situation where [an] injured worker had progressed ... from part-time, after-class student employment to full-time work." Hannaberry, 575 Pa. at 81, 834 A.2d at 533. Therefore, to remain consistent with the humanitarian purpose of the Workers' Compensation Act, the Supreme Court held that the claimant's part-time wages should not dilute his full-time wages where the injury occurred shortly after he became a full-time employee. Id. at 81-82, 834 A.2d at 533.
The present case is distinguishable from Hannaberry. The computations for unemployment compensation are markedly different from those for workers' compensation. Section 309 of the Workers' Compensation Act, 77 P.S. §582, presents several different measures for calculating workers' compensation benefits based on the type of employment relationship. By contrast, Sections 401 and 404 of the Unemployment Compensation Law do not differentiate the type of employment relationship; they focus only on the amounts earned and weeks worked by the putative claimant. Sections 401 and 404 of the Unemployment Compensation Law are explicit and leave no room for a flexible interpretation.
For all of the foregoing reasons, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 8th day of November, 2013, the order of the Unemployment Compensation Board of Review, dated February 28, 2013, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge