Best v. Workmen's Compensation Appeal Board

668 A.2d 279, 1995 Pa. Commw. LEXIS 557
Commonwealth Court of Pennsylvania·Decided December 12, 1995·Published·Cited by 3 cases

Opinion

NARICK, Senior Judge.

William Best (Best) petitions for review of the order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s determination of an average weekly wage of $569.91 for disability compensation. We affirm in part and reverse and remand in part.

On January 5, 1990, Best, a licensed practical nurse, injured his back, while lifting a patient, at Nursefinders of Allentown (Nur-sefinders). Best had worked part-time for Nursefinders for approximately two and a half months before his injury. Best also worked full-time for Harrisburg State Hospital (HSH).1

Best immediately began treatment with Paul R. Hetrick, D.C., for his back injury. Best continued working for both Nursefin-ders and HSH until May 1990, when Dr. Hetrick advised that Best cease working for both employers.2

On June 8, 1990, Nursefinder’s insurer, Amguard Insurance Co., (Amguard) issued a Notice of Compensation Payable, which paid Best benefits at the rate of $376.23 per week based upon an average weekly wage of $564.35. At this time, Best’s benefits were based solely upon wages from Nursefinders and did not include earnings from his concurrent employment with HSH. In order to calculate a weekly wage for Best, Amguard used a formula found in Section 309 of the Workers’ Compensation Act3 (Act) designed for an employee who has worked for the employer for less than 13 weeks.

On July 2, 1990, Best returned to work with HSH, but Dr. Hetrick did not permit Best to return to his job at Nursefinders.4 Best also suffered a recurrence of his work-related injury and was again off work from HSH from October 3 until October 18, 1991.

Following Best’s initial return to work with HSH, Amguard forwarded a Supplemental Agreement to Best dated August 28, 1990. This agreement also failed to take into account Best’s wages from concurrent employment with HSH. Because of this fact, Best did not sign the agreement. Consequently, Best forwarded proof of wages of employment at HSH to Amguard. Amguard then issued a revised Notice of Compensation Payable, dated January 8, 1991, computing Best’s weekly disability payment to be $419.00, based upon concurrent employment with Nursefinders and HSH; this computation was based on an average weekly wage of $975.55.5

Amguard prepared a second Supplemental Agreement, also dated January 8, 1991, confirming Best’s average weekly wage of $975.55. Best signed this agreement, and returned it to Amguard. This Supplemental Agreement was never filed with the compen[281] sation authorities because Amguard subsequently believed that Best’s average weekly wage had been miscalculated.

On March 25, 1991, Amguard unilaterally reduced Best’s partial disability to $300.02, for a two week period. Amguard further unilaterally reduced Best’s partial disability to $200.02, in the following two week period. On April 16, 1991, Amguard filed a Petition to Review alleging that Best’s average weekly wage should be only $569.91,6 instead of $975.55. Best never signed any revised supplemental agreements acknowledging partial disability consistent with an average weekly wage calculation of $569.91 per week. Instead, Best filed a penalty petition on May 3, 1991, claiming that Amguard had unilaterally reduced disability benefits without an order.

On February 10,1992, Best filed a Petition to Reinstate Compensation Benefits for temporary total disability based on the October 1991 recurrence.

Following a hearing, the Workmen’s Compensation Judge (WCJ) found that Best’s average weekly wage was $569.91, and not $975.55. However, the WCJ did not address Best’s reinstatement petition for the two week period of temporary total disability in October 1991, or the issue of whether penalties should be assigned to Amguard for unilaterally reducing Best’s benefits without approval. Best appealed the WCJ’s decision to the Board. The Board affirmed the WCJ with regard to the calculation of the concurrent average weekly wage but remanded to the WCJ to examine the possibility of imposing penalties which might be appropriate based upon Amguard’s unilateral reduction of Best’s partial disability entitlement. The Board also did not address the issue of whether Best’s temporary total disability benefits should have been reinstated in October 1991.

On remand, the WCJ did not find that Amguard’s unilateral reduction of Best’s partial disability entitlement deserved penalty. The WCJ found that it was not unusual for parties to correct wage matters on their own, and considered Amguard’s unilateral reduction of Best’s benefits “ministerial.” Best again appealed to the Board which affirmed the WCJ and dismissed Best’s appeal.

On appeal to this court,7 Best argues that the average weekly wage has been miscalculated and does not accurately reflect his concurrent employment with both HSH and Nursefinders. In addition, Best claims that he should receive temporary total disability benefits for a two week period in October 1991, when he suffered a recurrence of his injury. Finally, Best contends that Nurse-finders should be penalized for their unilateral reduction of his compensation benefits.

The first issue which must be considered is whether Best’s average weekly wage was calculated correctly within the meaning of the Act. Section 309 of the Act states that, “[wjherever in this article the term Vages’ is used, it shall be construed to mean the average weekly wages of the employee.” 77 P.S. § 582. When the employee has two separate jobs, the wages from both employers shall be considered as if earned from the employer liable for compensation. Section 309(e), 77 P.S. § 582(e).

However, the Board interpreted “wages” literally, adding the gross wages of both jobs, instead of following the clear mandate of Section 309 which defines, wages in the text of the statute, to mean average weekly wages.8 Average weekly wages must be eal-[282] culated separately before adding wages in the concurrent employment situation.

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Best v. Workmen's Compensation Appeal Board, 668 A.2d 279, 1995 Pa. Commw. LEXIS 557 (Pa. Ct. App. 1995).

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