Opinion
No. 812 C.D. 2002.
Submitted: July 12, 2002.
Filed: August 20, 2002. Order Filed: October 25, 2002.
Before: Honorable Doris A. Smith-Ribner, Judge; Honorable Renée L. Cohn, Judge; Honorable Joseph T. Doyle, Senior Judge.
ORDER
NOW, October 25, 2002, the petition for reargument/reconsideration in the above-captioned matter is hereby granted and the Chief Clerk is directed to list this case for argument before the court en banc in Harrisburg in December 2002.
The parties are directed to file supplemental briefs addressing any possible inconsistency between Culpetzer v. Workers' Compensation Appeal Board (Standard Steel), 802 A.2d 1233 (Pa.Cmwlth. 2002) and Merkle v. Workers' Compensation Appeal Board (Hofmann Indus.), 796 A.2d 1034 (Pa.Cmwlth. 2002).
Petitioner's supplemental brief (15 copies) shall be filed and served on or before November 8, 2002.
Respondent's supplemental brief (15 copies) shall be filed and served on or before November 22, 2002.
Opinion
This is an appeal by David Zerby (Claimant) from an order of the Workers' Compensation Appeal Board (Board), that affirmed the decision of a Workers' Compensation Judge (WCJ), to grant Claimant's claim petition and Reading Anthracite Company's (Employer) suspension petition. The Board also modified the calculation of Claimant's average weekly wage. We affirm.
The procedural history of this case is somewhat complicated. Claimant sustained a work-related lumbar sprain on May 23, 1996, and received benefits pursuant to a notice of compensation payable. On August 22, 1996, Employer filed a petition to suspend benefits on the basis that Claimant had refused suitable work on August 8, 1996. Then, on July 15, 1997, Claimant filed a claim petition for work-related cervical and low back injuries that he alleged occurred on May 29, 1997. The WCJ consolidated the two petitions. He granted the suspension petition, effective November 7, 1996, based on Claimant's return to work without lost earnings. Additionally, he granted Claimant's claim petition for the cervical and back injuries and awarded benefits of $421.65 per week based on an average weekly wage of $656.76. He used Section 309(d.1) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 582(d.1), in calculating the average weekly wage. Employer appealed to the Board arguing that Section 309(d) of the Act, 77 P. S. § 582(d), rather than Section 309(d.1), should have been used to calculate the average weekly wage.
On appeal, the Board, inter alia, remanded, stating that the calculation of the average weekly wage was in error because the WCJ failed to include bonus incentives and vacation time "in accordance with 309(d.1) and (e)." On remand, the WCJ recalculated the benefits and determined that Claimant's average weekly wage was $657.93 a week (this included bonuses) and that his compensation rate was $438.61. Employer again appealed, arguing that Section 309(d) and not Section 309(d.1) of the Act should control for purposes of calculation of the average weekly wage. The Board changed its position and agreed with Employer holding, additionally, that the WCJ erred in excluding from the calculation the periods of time when Claimant did not work. It modified the calculation to reflect an average weekly wage of $511.43 and a corresponding compensation rate of $340.95.
We have some concern that the Board reversed its legal position on the second appeal to it. However, this point is not argued on appeal and, in any event, as our disposition of the case makes clear, it was harmless error. We presume the Board acted as it did for purposes of judicial economy.
Claimant has now appealed to this Court alleging that the Board erred in applying Section 309(d) instead of Section 309(d.1) because there was no evidence that he "maintained his employment relationship" during the period he was not working as required under Norton v. Workers' Compensation Appeal Board (Norton), 764 A.2d 704 (Pa.Cmwlth. 2000). Our scope of review is limited to determining whether the findings of fact are supported by substantial evidence and whether there has been an error of law or constitutional violation. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 550 A.2d 1364 (Pa.Cmwlth. 1988). The determination of a Claimant's average weekly wage is one of law and, therefore, this Court's review is plenary. Norton.
Section 309 of the Act provides in relevant part:
(d) If at the time of the injury the wages are fixed by any manner not enumerated in clause (a), (b) or (c), 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.1) 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.
While Claimant concedes that he did some work for three consecutive periods of 13 calendar weeks in the 52 weeks preceding the injury, (Claimant's brief at pp. 8-9), he asserts that there is no evidence of record that he "maintained an employment relationship" as required by our decision in Norton. Thus, he claims Section 309(d) cannot be utilized here. In Norton, we rejected the claimant's argument that the term "employ" as used in Section 309(d) is limited to those situations where the claimant is actively engaged in the performance of services for compensation. We held that the term "is not limited to the actual days an employee works for wages, but encompasses the period of time that an employment relationship is maintained between the parties." Id. at 708. We, thus, concluded that Norton's average weekly wage was correctly calculated under Section 309(d) instead of 309(d.1), even though he did not work three full consecutive thirteen-week periods prior to his injury.
Claimant, here, argues that Employer failed to present any evidence that an employment relationship was maintained for the period when he was not actually working. He asserts that employer did not introduce evidence of Claimant's receipt of medical benefits, sick benefits, vacation days and seniority rights, which would be indicia of an ongoing employment relationship. What employer did introduce, however, was a statement of wages as evidence that Claimant received wages during three consecutive periods of 13 weeks in the 52 weeks immediately before the injury. As Judge Friedman of this Court recently stated in Merkle v. Workers' Compensation Appeal Board (Hofmann Industries), 796 A.2d 1034, 1037-38 (Pa.Cmwlth. 2002):
Here, the record establishes that Claimant had an employment relationship with Employer during each of the four consecutive thirteen-week periods comprising the fifty-two week period immediately preceding his March 13, 1998 injury. Indeed, this is made obvious by the Statement of Wages, which shows that Claimant earned wages during each of these four consecutive thirteen-week periods. Clearly, then, even if his work was interrupted, Claimant maintained an employment relationship with Employer during each of those four periods. Because Claimant had an employment relationship with Employer for at least three consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately preceding his March 13, 1998 injury, section 309(d.1), by its clear language, does not apply here, see 77 P. S. § 582(d); Port Authority [of Allegheny County v. Workers' Compensation Appeal Board (Cooley), 773 A.2d 224 (Pa.Cmwlth. 2001)], and Employer's calculation under section 309(d) was proper.
(Emphasis added.) We hold that Merkle is directly controlling in the case sub judice. Here, as in Merkle, we have a statement of wages (Ex. D-7) that shows Claimant's ongoing receipt of payment from Employer and thus, evidence that an employment relationship continued to exist. Therefore, application of Section 309(d) was both authorized and proper.
This document shows:
From 05/29/96-08/29/96 wages of $213.92
From 08/29/96-11/29/96 wages of $2562.75
From 11/29/96-02/29/97 wages of $8215.04
From 02/29/97-05/29/97 wages of $ 8245.68
Accordingly, based on the foregoing discussion, we affirm the order of the Board.
Claimant, in asserting that Employer failed to meet its burden to show a continuing relationship, relies on Port Authority of Allegheny County v. Workers' Compensation Appeal Board (Cooley), 773 A.2d 224 (Pa.Cmwlth. 2001), where the Court remanded for findings on the issue of whether an employment relationship had been maintained. Here, however, it is clear that the WCJ relied on and made findings based on the statement of wages. The only point on which the WCJ discredited this document was the legal one of whether the weeks Claimant had not worked could be taken into account in doing the average weekly wage calculation. We, therefore, think that the remedy in Merkle, rather than the one in Port Authority, is appropriate here.
ORDER
NOW, August 20, 2002, the order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby affirmed.