Colpetzer v. Workers' Compensation Appeal Board

870 A.2d 875, 582 Pa. 295, 2005 Pa. LEXIS 620
CourtSupreme Court of Pennsylvania
DecidedMarch 30, 2005
Docket63, 194 MAP 2003
StatusPublished
Cited by18 cases

This text of 870 A.2d 875 (Colpetzer v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colpetzer v. Workers' Compensation Appeal Board, 870 A.2d 875, 582 Pa. 295, 2005 Pa. LEXIS 620 (Pa. 2005).

Opinions

OPINION

Justice CASTILLE.

In Hannaberry HVAC v. Workers’ Compensation Appeal Bd. (Snyder, Jr.), 575 Pa.66, 834 A.2d 524 (2003), this Court recently considered whether, under Section 309(d) of the Workers’ Compensation Act, see 77 P.S. § 582(d), the General Assembly intended that a seriously and permanently injured full-time worker, whose three months of full-time employment was immediately preceded by part-time after-school employment, should be penalized by having the periods of his part-time scholastic employment included in the calculation of his average weekly wage (“AWW”). The Hannaberry Court concluded that this Section of the Act was intended to ensure an accurate calculation of an injured worker’s average wages, and thus, we held that the diminished wages reflected by earnings in earlier periods when the claimant was a part-time student worker could not be included to dilute the appropriate benefit amount.

In these consolidated appeals, this Court is faced with a different but related interpretive question under Section 309(d): i.e., whether the General Assembly intended that a [298]*298worker who receives workers’ compensation benefits resulting from a workplace injury, and who then returns to work and sustains a new injury, should be penalized by including in the computation of his AWW periods when he earned no wages because of the initial work injury. In each appeal, the Workers’ Compensation Appeal Board (“WCAB”) construed the Act to require that the periods of time when the Claimants earned no actual wages due to the initial work injury be included in the calculation of the AWW for the second injury, thus resulting in an AWW which underestimated the workers’ true earning capacity. Also in each appeal, the Commonwealth Court, which did not have the benefit of our decision in Hannaberry, reversed—by panel decision in Zerby and by en banc decision in Colpetzer—taking an approach to the question which followed this Court’s teaching in Triangle Building Center v. Workers’ Compensation Appeal Bd. (Linch), 560 Pa.540, 746 A.2d 1108 (2000), and in some respects foreshadowed this Court’s approach in Hannaberry. For the reasons that follow, we hold that in these cases, as in Hannaberry, an accurate computation of the Claimants’ AWW requires that the artificially depressed wages they received because of a prior compensated work injury cannot be included in the computation of the AWW for the second work injury. Accordingly, we affirm the Commonwealth Court in both appeals.

To understand properly the procedural history of these cases, including the reasons for the rulings below, familiarity with the Act’s payment computation scheme is required. In cases of total work disability, which was at issue in both cases sub judice, the Act authorizes an award of “sixty-six and two thirds per centum of the wages of the injured employe as defined in Section 309 beginning after the seventh day of total disability, and payable for the duration of total disability----” 77 P.S. § 511(1). Section 309, as amended by the Act of June 24, 1995, P.L. 350 (Act 57), then sets forth a scheme of computing “wages,” a term which it defines as meaning “the average weekly wages of the employe.” 77 P.S. § 582. Sections 309(a), (b) and (c) provide the method of calculating AWW when the employee’s wages are fixed by the week, [299]*299month or year, respectively. None of those subsections are at issue in the cases sub judice. Section 309(d) describes the method of calculation where, as here, wages are fixed otherwise:

(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.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. § 582.1

The facts of the individual cases are as follows:

Colpetzer v. Workers Compensation Appeal Bd. (Standard Steel)

Claimant William Colpetzer suffered a cervical strain on December 5, 1996, while in the course of his employment with Standard Steel, a Division of the Freedom Forge Corporation (“Standard Steel”). Standard Steel issued a notice of compensation payable fixing claimant’s AWW at $525.80, with a corresponding compensation rate of $350.53 per week. Claim[300]*300ant worked a restricted duty position from December 6, 1996 until February 23,1997 and was then placed on total disability from February 24,1997 until May 4,1997.

On November 2, 1998, Claimant filed a modification petition contending that Standard Steel had calculated his AWW incorrectly because, for nearly half of the fifty-two weeks of his employment with Standard Steel preceding the December 5, 1996 work injury, he had been disabled by a previous work injury, for which he received workers’ compensation benefits.2 Specifically, on March 15, 1996, Claimant had suffered a right shoulder strain for which Standard Steel had issued a notice of compensation payable establishing an AWW of $791.32 and a compensation rate of $527.00 per week. Claimant argued that his “average” wages were artificially depressed in the fifty-two weeks preceding the present injury due to the fact of his March 1996 disabling injury. In Claimants view, his AWW for the December 5, 1996 injury should have been calculated by averaging only the wages he received during the two complete quarters when he was not disabled and was actually earning his normal wages. Claimant invoked Section 309(d.l) of the Act, which governs AWW calculations in situations where an employee was not employed for three consecutive thirteen-week periods in the year immediately preceding injury, and which permits a computation of AWW based upon averaging any completed periods of thirteen calendar weeks of employment.

Standard Steel responded by arguing that Section 309(d) speaks in terms of periods of “employment,” not periods of “working,” and that Claimant in fact remained “employed” during the entire 52-week period preceding injury, even though he was unable to work during substantial periods of that time.

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Colpetzer v. Workers' Compensation Appeal Board
870 A.2d 875 (Supreme Court of Pennsylvania, 2005)

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Bluebook (online)
870 A.2d 875, 582 Pa. 295, 2005 Pa. LEXIS 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colpetzer-v-workers-compensation-appeal-board-pa-2005.