Bi-Thor Electric, Inc. v. Workers' Compensation Appeal Board

702 A.2d 1145, 1997 Pa. Commw. LEXIS 816, 1997 WL 726401
CourtCommonwealth Court of Pennsylvania
DecidedNovember 18, 1997
DocketNo. 1483 C.D. 1997
StatusPublished
Cited by26 cases

This text of 702 A.2d 1145 (Bi-Thor Electric, Inc. v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bi-Thor Electric, Inc. v. Workers' Compensation Appeal Board, 702 A.2d 1145, 1997 Pa. Commw. LEXIS 816, 1997 WL 726401 (Pa. Ct. App. 1997).

Opinion

RODGERS, Senior Judge.

Bi-Thor Electric, Inc. (Employer or Corporation) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) that affirmed the decision of the Workers’ Compensation Judge (WCJ) denying Employer’s petition to terminate or suspend William Thornton’s (Claimant) benefits. We affirm.

Claimant, an electrical contractor, is the joint owner with his wife of the Corporation. On July 20,1990, Claimant sustained a work-related injury for which he received benefits pursuant to a Notice of Compensation Payable. Claimant’s compensation rate of $419.00 was based on an average weekly salary of $700.00. Over the next several years, the parties entered into a number of Supplemental Agreements, the last of which was dated July 30, 1993. At that point Claimant had returned to work on a half time basis, receiving benefits at the rate of $233.33.

On March 1, 1994, Employer filed a petition to terminate/suspend benefits. Employer alleged that as of November 1, 1993, Claimant had fully recovered from his work-related injury or, in the alternative, had returned to work at a wage equal to or greater than his pre-injury wage.

In support of its petition, Employer presented the deposition testimony of Noubar A. Didzian, M.D. Employer also entered into evidence various financial documents of the Corporation. These included Claimant’s W-2 wage and tax statements with the Corporation’s payroll ledger sheets, verbal and written quotes submitted to potential customers, bank statements, federal corporate income tax returns for the years 1990, 1991 and 1992, and records of cash disbursements, cash receipts and petty cash monthly summaries for the years 1990 through part of 1994. In response, Claimant testified on his own behalf and submitted the deposition testimony of Martin A. Cohen, M.D., Claimant’s treating physician.

The WCJ accepted the testimony of Claimant’s medical expert as more credible and persuasive than that of Employer’s, finding that Claimant had not fully recovered from his work-related injury. Consequently, the WCJ concluded that Employer had not met the burden of proof required to have Claimant’s benefits terminated. As for the suspension portion of the petition, the WCJ formulated the following findings of fact relating to Claimant’s work history and financial situation:

12. The Claimant’s July 20, 1990 injury ongoing to the present caused and continues to cause the Claimant a loss of wages through his loss of bids and/or inability to bid on jobs for his electrical contracting business due to the limited horn's to which he is restricted ....
13. The Claimant’s testimony is persuasive and accepted as credible. It is persuasive based on his work history and experience that puts him in a position to know within his limitations what he can or cannot do, which affects his ability to bid [1147]*1147or not bid on jobs for the jointly owned Electrical contract business [.]
14. The evidence submitted in Findings of Fact number seven (a)(b)(c)(d)(e) has been read and considered in its entirety.

(WCJ’s decision, Reproduced Record, p. 372a). As a result of these findings, the WCJ concluded that Employer “failed to meet its burden of proof that the Claimant returned to work on November 1, 1993 at wages greater than or equal to his July 20, 1990 average weekly wage of $700.00.” Id.

On appeal, the Board affirmed the WCJ’s denial of the termination petition, concluding that the medical testimony believed by the WCJ supported the finding that Claimant had not fully recovered from his work-related injury. The Board also concluded that substantial evidence supported the finding that Claimant’s average weekly wage after November 1993, was less than Claimant’s pre-injury average weekly wage. Therefore, the Board also affirmed the WCJ’s denial of Employer’s suspension petition.

Employer now appeals to this Court,2 arguing that the WCJ erred in disregarding substantial evidence that Claimant, as the sole shareholder of the Corporation, was earning more than his pre-injury wage of $700.00 per week after November 1, 1993. Specifically, Employer argues that the WCJ failed to consider the gross income of the Corporation where the evidence shows that Claimant as the sole shareholder had complete control over the amount that he was paid as an employee.

Employer relies on Moore v. Workmen’s Compensation Appeal Board, 539 Pa. 333, 652 A.2d 802 (1995), for the proposition that a suspension of benefits is appropriate where the claimant returns to self-employment and the gross revenue of the business, and not its net earnings, is equal to or greater than the claimant’s pre-injury wage. This is not an accurate statement of the law espoused in Moore.

The claimant in Moore was a sole proprietor, who conducted a business performing painting, papering, carpentry and other home repairs. In addition to the information contained in the claimant’s tax returns, the claimant testified about the amount of his earnings. The WCJ found that the gross income amount rather than the net profit amount shown on the claimant’s tax return was a more accurate reflection of the claimant’s earnings. This determination stemmed from the finding that claimant operated his business out of his home and took deductions for office expenses, telephone, trash removal and vehicle expenses, etc. Thus, the WCJ found that the claimant’s gross sales less the costs of goods and/or operations, plus other income, represented a conservative estimate of the claimant’s earning power. The WCJ also credited the claimant’s statement that he had earnings of about $600.00 to $700.00 a week as reflecting his weekly wage rather than that this figure described his weekly gross sales.

[1148]*1148The Moore court did not hold that the WCJ must use the gross revenues of a claimant’s business to determine a claimant’s average weekly wage. Rather the Moore court held that after making credibility determinations, the WCJ’s findings of fact, if based on substantial evidence, should be upheld. Neither the Board nor an appellate court can reweigh the evidence when reviewing a case on appeal. Id. Having found that substantial evidence supported the WCJ’s findings that the gross revenues of the claimant’s business more accurately reflected the claimant’s average weekly wage, the Moore court held that the WCJ’s decision suspending benefits should not have been reversed by the Board. The suspension petition had been properly granted by the WCJ, because the WCJ’s finding that the claimant’s average weekly wage exceeded his pre-injury wage was based on substantial evidence.

Here, the WCJ came to the opposite conclusion.

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Bluebook (online)
702 A.2d 1145, 1997 Pa. Commw. LEXIS 816, 1997 WL 726401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bi-thor-electric-inc-v-workers-compensation-appeal-board-pacommwct-1997.