Pike v. Workers' Compensation Appeal Board

22 A.3d 332, 2011 Pa. Commw. LEXIS 237
CourtCommonwealth Court of Pennsylvania
DecidedMay 23, 2011
StatusPublished
Cited by2 cases

This text of 22 A.3d 332 (Pike 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
Pike v. Workers' Compensation Appeal Board, 22 A.3d 332, 2011 Pa. Commw. LEXIS 237 (Pa. Ct. App. 2011).

Opinion

OPINION BY

Judge COHN JUBELIRER.

Gregory Pike (Claimant) petitions this Court for review of the May 25, 2010, Order of the Workers’ Compensation Appeal Board (Board), incorporating its Opinion and Order dated December 29, 2008, that, inter alia, affirmed the WCJ’s determination of Claimant’s average weekly wage (AWW) pursuant to Section 309(d) of the Workers’ Compensation Act (Act).1 Claimant contends that the Board erred in affirming the WCJ’s determination of Claimant’s AWW by: (1) including substantially lower earnings from periods before Claimant received a promotion to a much higher paying position; and (2) subtracting all the expenses Claimant listed on his 2004 federal income tax return (tax return), such as depreciation and home office business use deductions, rather than only those expenses actually paid.

The WCJ made the following relevant Findings of Fact with relation to the calculation of Claimant’s AWW:

1. The Claimant, Gregory Pike, sustained a low back injury during the course of his employment with Ves-el[e]y Brothers Moving and Storage (Employer) on October 28, 2004. The Notice of Compensation Payable that was issued concerning the claimant’s work injury of October 28, 2004, reflects that the claimant’s pre-injury average weekly wage was $458.00 and that the total disability compensation rate applicable to the work injury of October 28, 2004 is $337.50 per week. An Amended Notice of Compensation Payable was issued in this matter on December 9, 2004. Then a second [334]*334Amended Notice of Compensation Payable was issued on January 10, 2005. The second Amended Notice of Compensation Payable reflects that the claimant’s pre-injury average weekly wage was $625.67 and that the total disability compensation rate applicable to the claimant’s work injury of October 28, 2004 is $417.11 per week.
2. In June, 2005, the employer filed a Statement of Wages with the Bureau of Workers’ Compensation in Harrisburg, PA. The Statement of Wages lists the claimant’s pre-injury average weekly wage as being $1,427.43
8. In February, 2006, the claimant, Gregory Pike, filed a Petition to Review Compensation Benefits in which he alleged that the employer had incorrectly calculated his average weekly wage.
20. The claimant, Gregory Pike, testified at the hearing held in this matter on May 11, 2006.
The claimant testified that he started working for Employer in June, 2003. He said that his first job with Employer was as a warehouse worker/laborer. ... He also testified that, as a warehouse workerfiaborer, he was paid at the rate of $8.50 an hour. The claimant testified that his position with Employer changed as of August 1, 2004. As of that date, according to the claimant, he became a Class A certified driver for United Van Lines through Employer.
The claimant indicated that, as a Class A certified driver, rather than being paid at an hourly wage rate, he was paid a percentage of the total value of the job. The claimant acknowledged that he was given a sum of money for a job, and after the expenses were deducted, the amount left over was his income. The claimant testified that the percentage he was paid and the amount of expenses he incurred varied from job to job.
23. The claimant also testified at the hearing held in this case on June 14, 2007. The claimant verified that when he filed his 2004 tax return, he took various deductions. The claimant confirmed that one of those deductions was for depreciation for the truck he used for business. The claimant testified that he obtained the right to use that truck through a lease agreement with Employer. The claimant said he entered into the lease agreement with Vesel[e]y’s on August 1, 2004, and that it was a one-year lease agreement.
The claimant testified that he also took a deduction for the business use of his home. He testified that he started using his home for some business purposes after August 1, 2004 and stopped using his home for any business purpose some time in 2005. The claimant testified that the new job he started with Employer as of August 1, 2004 was a permanent position. The claimant said, “The only thing that stopped it was my injury.” During cross-examination, the claimant stated that the truck that was depreciated was a 1991 Freightliner. The claimant explained that he was to make lease payments on the truck for one year and, at the end of the lease term, the buy-out fee would be zero. The claimant testified that the lease payments were approximately $505.00 per month. The claimant said that he made the lease payments for the months of August, September, and
[335]*335October. Then, according to the claimant, he turned the truck back to Employer because he could not afford the payments.
The claimant testified that whenever he got gas for the truck and paid tolls, he used a company credit card and those expenses were taken out of his commission.
The claimant also testified that he bought six tires for the truck and the tire expenses were also deducted from his commission.
The claimant testified that, prior to his work injury, he did some work-related paperwork and computer work in his office at home.
39. Based upon my review and consideration of all of the evidence of record, I find that the correct average weekly wage applicable to the work injury Gregory Pike sustained on October 28, 2004 is $744.64. I further find that the correct total disability compensation rate applicable in this matter is $496.67 per week.
In reaching these particular determinations, I note that every wage statement and proposed wage statement that has been submitted into the record in this matter reflects that the claimant’s average weekly wage for the second thirteen-week period during the 52 weeks immediately prior to the claimant’s work injury of October 28, 2004 was $306.23. In addition, every statement of wages and proposed statement of wages that has been submitted into the record reflects that the claimant’s average weekly wage during the third thirteen-week period during the 52 weeks immediately prior to the claimant’s work injury of October 28, 2004 was $368.15. Accordingly, there does not appear to be a dispute concerning the claimant’s average weekly wage for those two thirteen week periods. So, I have used those average weekly wage figures in my calculations.
I find that the crux of the average weekly wage calculation issue in this case is the issue as to what should be considered the claimant’s average weekly wage for the fourth period of thirteen weeks during the 52-week period immediately prior to the claimant’s work injury of October 28, 2004. As is about to be explained, I have calculated the claimant’s average weekly wage for the fourth period of 13-weeks to be $1,559.54.
In reaching the figure of $1,559.54, I have taken the claimant’s gross earnings of $50,150.00 as reported on the 1099 he was issued for 2004 and from those gross earnings, I have deducted $29,876.00. The $29,876.00 represents the total amount Mr. Pike claimed as business expenses on the Schedule C that was filed with his 2004 income tax return, including the $596.00 expense he claimed for the business use of his home.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

A.L. Barnes v. S.D. of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania, 2023
C. Sadler v. WCAB (Philadelphia Coca-Cola)
210 A.3d 372 (Commonwealth Court of Pennsylvania, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
22 A.3d 332, 2011 Pa. Commw. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pike-v-workers-compensation-appeal-board-pacommwct-2011.