Hague v. Workmen's Compensation Appeal Board

591 A.2d 1160, 139 Pa. Commw. 545, 1991 Pa. Commw. LEXIS 258
CourtCommonwealth Court of Pennsylvania
DecidedMay 7, 1991
Docket1548 C.D. 1990
StatusPublished

This text of 591 A.2d 1160 (Hague v. Workmen's 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
Hague v. Workmen's Compensation Appeal Board, 591 A.2d 1160, 139 Pa. Commw. 545, 1991 Pa. Commw. LEXIS 258 (Pa. Ct. App. 1991).

Opinion

BARBIERI, Senior Judge.

Donald E. Hague (Claimant) petitions this Court to review an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision to grant a total suspension of benefits on a petition filed by Forney, Inc. (Employer).

[547]*547Claimant began working for Employer as a machine assembler in September 1986. On August 5, 1987, Employer posted a job opening for a “Helper” 1 which is classified as a laborer “A” position.

Although the hourly wage for the laborer “A” position was approximately $2.00 less than what he was currently making as a machine assembler, Claimant signed the posting, indicating his interest in the position.2 On September 8, 1987, Claimant was awarded the laborer “A” position. The next day, Claimant began performing his new job duties.

On September 22, 1987, while performing the laborer “A” position, Claimant sustained a deep, left thigh laceration. As a result, Claimant was paid total disability benefits at the rate of $325.69 per week pursuant to a Notice of Compensation Payable. Claimant’s rate of compensation was determined by calculating his average weekly wage according to Section 309(d) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(d),3 and then taking sixty-six and [548]*548two-thirds per centum of that figure as required by Section 306(a) of the Act, 77 P.S. § 511.4 We note that this basis for compensation, Section 309(d), must be computed from the highest quarter “in the fifty-two weeks immediately preceding the injury.” Footnote 3. Despite this clear and unambiguous language in the Act, employer maintains, and the Board agreed, that only the brief earning period in Claimant’s new job could be considered as the pre-injury Average Weekly Wage for computing his post injury loss. This, of course, resulted in the contested total suspension during the post injury disability period with which we must disagree.

Claimant’s continuing disability is not questioned and there are no issues of fact raised on this appeal; only the obvious question of law.

Since Claimant, on November 17, 1987, returned to his laborer “A” position, Employer filed the instant suspension petition, asserting that all of Claimant’s compensation benefits should be suspended as of November 17, 1987 since he had “returned to his same or similar work at the same or greater wages than his pre-injury wage.” Claimant filed an Answer to Employer’s petition denying the no-loss averment of employer and argued at trial that although he had returned to his injury date job on November 17, 1987, since his average weekly wage for compensation purposes was higher than his current weekly wage as a laborer “A”, he was entitled under Section 306(b) of the Act, 77 P.S. § 512, [549]*549to two-thirds of wage differential in compensation for his undisputed disability.5

Section 306(b) of the Act, just as unambiguous as Section 309(d), provides in pertinent part:

For disability partial in character ... sixty six and two-thirds per centum of the difference between the wages of the injured employe, as defined in section three hundred and nine, and the earning power of the employe thereafter; .. ,[6]

Disagreeing with the Claimant’s view of the law, the referee made the following statement as a finding of fact:

The claimant’s loss of earnings since he returned to work is not caused by his compensable injury. This loss of earnings is the result of his voluntary acceptance of a lower paying job before his injury.

Finding of Fact No. 11. Accordingly, the referee concluded that from the date of Claimant’s return to work on November 17, 1987 he was not entitled to partial disability benefits.7

On appeal to the Board, Claimant argued that (1) the referee erred as a matter of law in failing to award partial [550]*550disability payments to Claimant, since Claimant’s earnings on his return to his time-of-injury job was not tantamount to his average weekly wage for compensation purposes; and (2) the referee erred as a matter of law in deciding this case on grounds which were never presented to the referee by Employer.

The Board, in its opinion, analyzed the issues presented by Claimant, in part, in the following manner:

The burden of proof for Suspension is on the [Employer] to show that, while all disability has not ceased, Claimant has returned to work without a loss of earning power ...
We agree with Claimant’s contention that the Workmen’s Compensation Act is remedial in nature and is to be construed accordingly. However, we have difficulty with the ‘remedial’ aspects of Claimant returning to his preinjury job at the pre-injury wage under a grant of suspension and still receiving partial disability benefits over and above that due to the average weekly wage calculation. In this case, Claimant did switch jobs, even though he did not switch employers. Under Section 413 of the Act, [Employer] is entitled to a Suspension where there is no loss of earnings despite the ongoing disability ...[8]

Board’s Opinion, p. 2. Accordingly, the Board affirmed the decision of the referee and dismissed Claimant’s appeal.

Claimant now petitions this Court to review the Board’s decision.9 Once more, Claimant asserts the same two arguments which he presented to the Board. Because, in our opinion, the Board incorrectly applied legal principles con[551]*551trary to appellate court decisions of long standing, we will reverse.

As appears in our quotation above from Section 306(b), where there is continuing partial disability, as is undisputed in this case, a claimant is entitled to be paid for his partial disability two-thirds of the difference between the wages as computed in Section 309, known as the employe’s Average Weekly Wage, and the earning power of the employe thereafter. Since the Average Weekly Wage is not disputed, nor is the fact that Claimant’s present earnings represent his post injury “earning power,” Section 306(b) of the Act, it is obvious that the terms of Sections 306(b) and 309, being completely unambiguous, require a conclusion that all compensation for Claimant’s partial disability was improperly denied by the total suspension entered by the referee and approved by the Board.

Down through the years, our Courts have consistently rendered decisions which note that motives with regard to wage differentials are not relevant in interpreting Section 309, nor is a claimant’s choice of employment preceding or following injury determinative on questions of what constitutes a pre-injury Average Weekly Wage for compensation purposes, and what constitutes a loss in earning power of a partially disabled employee following injury.

Thus, in Romig v. Champion Blower & Forge Co., 315 Pa. 97, 172 A.

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591 A.2d 1160, 139 Pa. Commw. 545, 1991 Pa. Commw. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hague-v-workmens-compensation-appeal-board-pacommwct-1991.