Burkhart Refractory Installation v. Workers' Compensation Appeal Board

896 A.2d 9, 2006 Pa. Commw. LEXIS 148
CourtCommonwealth Court of Pennsylvania
DecidedMarch 30, 2006
StatusPublished
Cited by5 cases

This text of 896 A.2d 9 (Burkhart Refractory Installation 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
Burkhart Refractory Installation v. Workers' Compensation Appeal Board, 896 A.2d 9, 2006 Pa. Commw. LEXIS 148 (Pa. Ct. App. 2006).

Opinion

OPINION BY

Senior Judge FLAHERTY.

Burkhart Refractory Installation (Employer) petitions for review of a decision of the Workers’ Compensation Appeal Board (Board) which affirmed as modified the decision of a Workers’ Compensation Judge (WCJ) granting the Petition to Re[10]*10view Compensation filed by Roy Christ (Claimant). We affirm.

Claimant’s first day of work for Employer was March 8, 2002. Claimant began receiving benefits pursuant to a Temporary Notice of Compensation Payable (TNCP) for an injury that occurred on June 24, 2002. Thereafter, Employer filed a Petition to Review Compensation Benefits contending that the Average Weekly Wage (AWW) was incorrect. Also, Claimant filed a Petition alleging that the AWW in the TNCP is incorrect.

Oliver Harrison Burkhart, the president of Employer, testified before the WCJ. In his opinion, the WCJ summarized his testimony as follows:

1.... Sometimes the work is due to an emergency situation; and at other times, the work is purely maintenance that can be scheduled ahead of time. He stated the work is sporadic. He is familiar with the Claimant, who was hired in a laboring position with no specific number of work hours. He does not recall telling the Claimant the work was sporadic, but he admitted that he normally does communicate the off and on nature of work. He stated that the Claimant’s work hours varied from week to week, just as all laborers did. Mr. Burkhart stated that the only workers that get fairly steady work would be the long-term foremen. He stated that work schedules are posted for one job only and that subsequent postings would be for a different job. Most of the time, the workers are on-call.

(WCJ’s 9/21/2004 Decision, p. 2).

The WCJ granted the Petition to Review Compensation Benefits and determined that Claimant’s AWW was $311.82. Claimant appealed to the Board, which determined that Claimant’s AWW should be $454.17. The Board determined that a strict application of Section 309(d.2) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(d.2), did not afford a determination that reflected economic reality because, although Claimant worked less than 13 weeks at the time of the injury, he did not have an expected number of weekly hours to work. Consequently, the Board determined that a permissible alternative must be used to calculate Claimant’s AWW. Although Claimant was employed for 16 weeks, he only actually earned wages during 12 of those weeks. Accordingly, the Board arrived at an AWW by dividing Claimant’s gross wages by 12. The Board based this decision on the Supreme Court case of Hannaberry HVAC v. WCAB (Snyder, Jr.), 575 Pa. 66, 834 A.2d 524 (2003), in which the Court held that “that subsection (d) does not control the calculation in a circumstance, such as this one, where it would lead to a grossly and demonstrably inaccurate measure of a worker’s average weekly wage.” Id. at 82-83, 834 A.2d at 534. Employer’s appeal to this Court followed.

On appeal to this Court, Employer argues that Claimant was employed for at least one complete 13 week period and, pursuant to the Supreme Court’s recent decision in Reifsnyder v. WCAB (Dana Corporation), 584 Pa. 341, 883 A.2d 537 (2005), Section 309(d.l) should be used to calculate the AWW.

Section 309 provides that:

(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 [11]*11the total amounts earned during these three periods.
(d.l) 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.
(d.2) If the employe has worked less than a complete period of thirteen calendar weeks and does not have fixed weekly wages, the average weekly wage shall be the hourly wage rate multiplied by the number of hours the employe was expected to work per week under the terms of employment.

77 P.S. § 582.

In Hannaberry, the claimant worked part-time for the employer while he was in high school and then, upon graduating from high school, he began working full-time. Shortly after he began working full-time, the claimant sustained a devastating injury to his spinal cord which rendered him a paraplegic. Employer contended that the claimant’s AWW should be calculated based on his highest three quarters of employment in the previous year, two of which were periods of part-time employment. The claimant argued that including his part-time high school employment in the AWW calculation artificially decreased his wages. The WCJ agreed and calculated the claimant’s AWW based only on his last calendar quarter of work. Employer appealed to the Board, which affirmed. Employer appealed to this Court, which reversed on the basis that the Act did not address nor make a distinction between part-time and full-time employment. As such, we concluded that the calculation favored by the employer should be used. On appeal, the Supreme Court reversed and held that:

Since Section 309 does not address the part-time to full-time paradigm presented here, and a reading of the statute as requiring dilution of the benefit would be contrary to the overall humanitarian purpose of the Act, resort to principles of statutory construction is appropriate. Those principles dictate that appellant’s part-time wages not be permitted to dilute the benefit due to him as a result of an injury suffered after he became, and had been for some time, a full-time employee. Consideration of the “occasion and necessity” for the 1996 amendment, “the circumstances under which it was enacted,” the mischief it sought to remedy, the object it sought to attain, and the former law, 1 Pa.C.S.1921(c)(l)-(5), all weigh in favor of calculating appellant’s average weekly wage based upon his quarter of full-time employment.

Hannaberry, 575 Pa. at 81-82, 834 A.2d at 533.

The Reifsnyder case dealt with three claimants, all of whom were long-term employees of the employer and were subject to periodic layoffs during downturns in the employer’s production cycle. The WCJ and the Board construed the Act as requiring that the periods of time when the claimants earned no wages due to layoffs be included in the calculation of their AWW pursuant to Section 309(d). On appeal to this Court, we stated that the issue before us was not whether the claimants were employed by Employer in the 52 weeks preceding their injuries. Rather, the issue was whether the claimants worked a complete 13 week period in the 52 weeks preceding their injuries.

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896 A.2d 9, 2006 Pa. Commw. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkhart-refractory-installation-v-workers-compensation-appeal-board-pacommwct-2006.