L. Wellman v. WCAB (Buckshot Express R-Builders, Inc.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Legrand Wellman, Petitioner v. Workers Compensation Appeal Board (Buckshot Express R-Builders, Inc.), Respondent BEFORE: : : : : : : : : : : : No. 1778 C.D. 2007 Submitted: December 14, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: January 31, 2008 Legrand Wellman (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board), which affirmed in part and reversed in part the decision of a Workers Compensation Judge (WCJ) granting Buckshot Express RBuilders, Inc. s (Employer) Review Petition and denying Claimant s Claim Petition on remand. The issue on appeal is whether the Board erred in affirming the WCJ s decision which amended Claimant s average weekly wage (AWW) from $1,250.00 per week to $548.75 per week. On September 5, 2000, Claimant filed a Claim Petition alleging he sustained injuries to his brain, left eye, right wrist, right foot, and right knee, a skull fracture, facial disfigurement, and hearing loss on April 5, 2000 while in the scope and course of his employment. Employer did not file an answer to the Claim Petition. On December 12, 2000, a WCJ granted Claimant s Claim Petition on its pleadings1 pursuant to Yellow Freight Systems, Inc. v. Workmen s Compensation Appeal Board (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981) and awarded unreasonable contest counsel fees in the amount of twenty percent. Employer filed a nunc pro tunc appeal, and the Board remanded the matter back to the WCJ to take evidence regarding the issue of Claimant s AWW, among other things. At the remanded Claim Petition proceeding, Claimant and his common law spouse, Patricia Trout, provided deposition testimony in support of an AWW of $1,250.00. Employer submitted evidence to refute an AWW of $1,250.00 in the form of a handwritten gross wage report (Report) prepared by Gallagher Basset Services, the third party administrator for Employer.2 In support of the remanded Claim Petition, Claimant testified that he began working for Employer as a truck driver in late March 2000. Claimant worked less than two weeks before he was injured on April 5, 2000 when he fell from a flatbed trailer. Claimant has not returned to work since then. Claimant testified that an unnamed individual who hired him told him that he would earn between $1,000.00 1 Claimant pled an AWW of $1,250.00. 2 According to Employer s brief, Employer went out of business before providing counsel with actual wage records. (Employer s Br. at 6.) 2 and $1,200.00 per week. (WCJ Decision, Findings of Fact (FOF) 6, November 1, 2006.) Claimant stated that [h]is weekly salary would be based on mileage, percentage of the load, and whether the load was tarped or untarped. (FOF ¶ 6.) Claimant testified that he was hired to work Monday to Friday and that he did not have a set schedule. He stated that Employer never guaranteed any specific weekly salary and he did not know how Employer calculated his pay rate. (FOF ¶ 6.) Further, Claimant testified that, as a result of his work injury, he has difficulty remembering things, and cannot recall the amount of the two paychecks that he received while employed by Employer. Ms. Trout also provided deposition testimony in support of the remanded Claim Petition. She testified that after Claimant s injury, she obtained two paychecks from Employer: the first paycheck was for three days of work from Wednesday to Friday, which she believed to be over $800.00, but does not recall the exact amount; the second paycheck was for two days of work, Monday and Tuesday, which she believed to be $156.25. (FOF ¶ 7.) Ms. Trout did not have the pay stubs and believed she gave them to Claimant s former attorney. (FOF ¶ 7.) In opposition to the remanded Claim Petition, Employer submitted a handwritten report from Gallagher Basset Services listing Claimant s gross wages. It provides that Claimant was paid $392.50 for the pay period of April 7, 2000, and $156.25 for the pay period of April 14, 2000. (Wage Records of Gallagher Basset Services.) 3 The WCJ stated that he carefully considered the documentary evidence and the testimony of Claimant and Ms. Trout, and finds that the evidence fails to support an average weekly wage of $1,250.00 as set forth in the Claim Petition. This Judge finds that Claimant s average weekly wage is no more than $548.75 per week. (FOF ¶ 10.) Claimant appealed the WCJ s decision and order to the Board, which affirmed the finding that Claimant s AWW was $548.75, with a compensation rate of $365.83. The Board held that because Claimant only worked five days prior to his injury, Section 309(d.2) of the Workers Compensation Act (Act)3 is the applicable provision for determining Claimant s AWW because Claimant has not worked a complete period of thirteen weeks and does not have fixed weekly wages. Section 309(d.2) of the Act, 77 P.S. § 582(d.2). The Board stated that the WCJ added the amounts of Claimant s two checks together, as provided by Employer, in determining that Claimant s AWW was $548.75. The Board did not find error with the WCJ s determination and noted that the WCJ did not find that Claimant s testimony supported an award of $1,250.00 per week. The Board stated that the WCJ noted that there was no guarantee of a specific weekly salary, that [Claimant s] salary would be based on several factors, and that the amounts he received were less than that. (Board Op. at 7-8.) The Board concluded that, because the WCJ based his award on the check amounts received for Claimant s five days of work, it must affirm the amendment to the [AWW] as it is supported and seems to be a more 3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582. 4 accurate and realistic measure of what Claimant could have expected to earn had he not been injured. (Board Op. at 8.) Claimant now petitions this Court for review.4 On appeal, Claimant contends that the WCJ s decision amending Claimant s AWW to $548.75 is not supported by substantial evidence. More specifically, Claimant contends that the Board erred in affirming the WCJ s decision because: (1) the WCJ s decision does not provide sufficient explanation or rationale to allow the Board to conduct meaningful appellate review; (2) the WCJ relied upon hearsay evidence over the uncontroverted testimony of Claimant and Ms. Trout; and (3) the WCJ miscalculated Claimant s AWW pursuant to the Act. First, Claimant contends that the Board erred in affirming the WCJ s decision amending the AWW because the WCJ did not specifically make a credibility finding for any of the witnesses testimony or evidence submitted. Further, Claimant contends that the WCJ merely stated that the AWW is no more than $548.75 , but gives no further explanation or rationale as to where this figure came from or how it comports with the requirements of the Act. (Claimant s Br. at 11-12.) Claimant contends that the Board could not provide meaningful appellate review of the WCJ s decision, and that making assumptions is beyond the scope of the Board s authority in reviewing decisions. 4 Our standard of review is limited to a determination of whether there has been a violation of constitutional rights, whether an error of law has been committed, or whether all necessary findings of fact are supported by substantial evidence. Guthrie v. Workers Compensation Appeal Board (Keystone Coal Co.), 767 A.2d 634 (Pa. Cmwlth. 2001). 5 Section 422(a) of the Act, 77 P.S. § 834, establishes the requirements for a well-reasoned opinion. That section provides, in pertinent part: All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review. 77 P.S. § 834. [A] decision is 'reasoned' for purposes of Section 422(a) if it allows for adequate review by the [Board] without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. Daniels v. Workers' Compensation Appeal Board (Tristate Transportation), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003). We conclude that the WCJ adequately complied with the requirements of Section 422(a) of the Act and issued a well-reasoned decision capable of meaningful appellate review by the Board and this Court. The WCJ thoroughly recited all of the evidence that was presented in the remanded Claim Petition proceeding and made 11 findings of fact. Specifically, the WCJ summarized the deposition testimony of Claimant and Ms. Trout, and explained that he reviewed all documentary evidence 6 presented by Employer. (FOF ¶¶ 6, 7, 10.) Although not specifically found as fact, the WCJ chose to credit the documentary evidence over the deposition testimony of Claimant and Ms. Trout. Neither Claimant, nor Ms. Trout, could definitively testify as to the exact amount of Claimant s two paychecks from Employer.5 Moreover, neither witness could provide any evidence to corroborate their belief that Claimant s AWW was supposed to be $1,250.00.6 On the other hand, Employer submitted a document prepared by Gallagher Basset Services indicating an exact amount for Claimant s two paychecks from Employer. It is clear, based on this document, that the WCJ added the two amounts together in determining Claimant s AWW of $548.75. Determining the AWW in this case is complicated by the nature of projecting mileage, truck loads and waiting time with a truck-driving history of only five days. Because the WCJ considered all evidence presented at the remanded Claim Petition proceeding, and because the WCJ s findings and conclusions were adequate for the Board and this Court to review, we find that the WCJ issued a wellreasoned decision pursuant to Section 422(a) of the Act. Next, Claimant contends that an AWW of $548.75 is not supported by substantial evidence because the WCJ relied on hearsay evidence in reaching this amount. Claimant alleges that he objected to the Report because there were 5 In fact, Claimant could not recall receiving his two paychecks from Employer, nor did he remember if he saved his pay stubs from Employer. (Claimant Dep. at 12-13.) Furthermore, Claimant did not know if he filed a federal income tax return for the year 2000. (Claimant Dep. at 12.) 6 It appears from the record of Claimant s deposition that Claimant thought [Employer] was nuts (Claimant Dep. at 11) when Employer estimated that Claimant would make between a thousand and 1200 a week. (Claimant Dep. at 10.) Thus, Claimant essentially asks this Court to give him an AWW which is contrary to his reasonable expectations. 7 handwritten figures appearing on the Report with no indication, via signature, of the person who prepared the Report. Specifically, Claimant states that [t]his document was submitted by the Employer and objected to by the Claimant. The WCJ does not address the objection in his decision ¦. (Claimant s Br. at 12-13.) Further, Claimant alleges that [w]hen Employer submitted this document, claimant preserved its hearsay objection. In his decision, the WCJ fails to rule on the objection. (Claimant s Br. at 14.) Claimant relies on McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617 (1918) for the proposition that objected-to hearsay is not competent evidence of a significant finding of fact; however, we find Claimant s argument without merit because the record does not support his assertion that he objected to the Report on hearsay grounds before the WCJ. Because a hearsay objection was not preserved below,7 Claimant s argument is waived. Finally, Claimant argues that the WCJ improperly calculated Claimant s AWW pursuant to Section 309 of the Act. Claimant contends that there is no standard factor that can be used as the basis for the calculation because he was to be paid not according to the hours he worked, but the miles driven, type of load being carried and waiting time. (Claimant s Br. at 15.) Thus, Claimant argues that his testimony alone is the only measure of what he could have reasonably expected to earn during his employment with Employer. (Claimant s Br. at 15-16.) Section 309 of the Act provides in relevant part: 7 This Court has thoroughly reviewed the original record and cannot locate an objection made by Claimant on hearsay grounds to the Report submitted by Employer. Moreover, Claimant fails to point this Court to where this alleged objection was made on the record. Accordingly, we are constrained to affirm the Board s finding that this argument is waived. 8 Wherever in this article the term "wages" is used, it shall be construed to mean the average weekly wages of the employe, ascertained as follows: ... (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.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. The Supreme Court of Pennsylvania, in Hannaberry HVAC v. Workers' Compensation Appeal Board (Snyder, Jr.), 575 Pa. 66, 834 A.2d 524 (2003) and Colpetzer v. Workers' Compensation Appeal Board (Standard Steel), 582 Pa. 295, 870 A.2d 875 (2005), has examined Section 309 of the Act and has held that a fair and accurate calculation of a claimant s AWW is required. In Hannaberry, the Supreme Court granted review to determine whether the General Assembly intended, in amending Section 309 of the Act, that a full-time worker who was seriously and permanently injured on the job, whose three months of full-time employment were immediately preceded by part-time, after-school employment, should be penalized by having the periods of his part-time, scholastic employment included in calculating his AWW. Hannaberry, 575 Pa. at 68, 834 A.2d 9 at 525. In that case, the claimant had worked part-time for the employer while in high school; however, he was injured after he completed twelve weeks of full-time work with the same employer at more than four times his student weekly wages. The Court held that, where Section 309(d) did not address the paradigm of moving from part-time to full-time work, and where the intention of the Act, as amended by the Act of June 24, 1996, P.L. 350, was to provide a fair ascertainment of wages that would more accurately reflect the hourly worker's true wages, the WCJ properly calculated the AWW solely on the basis of the claimant s final quarter of wages. Hannaberry, 575 Pa. at 80-82, 834 A.2d at 532-33. The Court stated that the Section as a whole obviously is designed to ensure an accurate calculation of wages and, in the case of recently hired workers, the statute permits a projection based upon the number of hours the employee was expected to work. Id. at 80, 834 A.2d at 532 (emphasis in original). In Colpetzer, the Supreme Court was faced with a different question: whether the General Assembly intended that a worker 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. Colpetzer, 582 Pa. at 297-98, 870 A.2d at 876. The Supreme Court quoted the statement from Hannaberry that Section 309, as amended, is "an attempt to ensure that the calculation of wages would be a more accurate and realistic measure of what the employee could have expected to earn had he not been injured which, in turn, would insure both that the employee was not over-compensated and the employer not over-burdened." Colpetzer, 582 Pa. at 314, 870 A.2d at 887 (quoting Hannaberry, 575 Pa. at 72, 834 10 A.2d at 528). The Supreme Court stated that its decision in Colpetzer is consistent with the intention of the General Assembly, to make certain that economic reality has prevailed. Id. at 315, 870 A.2d at 887. Here, we are faced with a different situation in which the wages that Claimant could have been expected to earn are based not on hours he would have worked, but on miles driven, type of loads being carried and waiting time. Because Claimant only worked for Employer for five days, there is no precise formula with which to calculate the wages he could have been expected to earn. Projecting miles to be traveled, types of loads to be carried and waiting time he would have encountered had he not been injured, involves considerable speculation, particularly since truck driving is contingent upon many elusive and unpredictable factors such as gas prices and weather. The WCJ here, in an effort to fairly estimate Claimant s wages, carefully considered all evidence presented to him, including the deposition testimony of Claimant and Ms. Trout, as well as a document prepared by Employer s insurer documenting the gross wages Claimant was paid for two pay periods. Based on this evidence, the WCJ implicitly credited Employer s evidence over that of Claimant s evidence8 and found that the evidence fails to support an average weekly wage of $1,250.00 as set forth in the Claim Petition and that the AWW is no more than $548.75 per week. (FOF ¶ 10.) 8 It is within the sole province of the WCJ to make credibility determinations. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). 11 Recently, in Burkhart Refractory Installation v. Workers Compensation Appeal Board (Christ), 896 A.2d 9 (Pa. Cmwlth. 2006), a claimant was hired as a laborer for an unspecified number of work hours, and was injured after working less than thirteen weeks. Although the claimant was employed for a total of sixteen weeks, he only earned wages during twelve of those weeks. Id. at 10. Employer appealed to this Court after the Board recalculated and increased the WCJ s determination of the claimant s AWW. The Board noted that strict application of Section 309(d.2) of the [Act] did not afford a determination that reflected economic reality because, although [the claimant] worked less than 13 weeks at the time of the injury, he did not have an expected number of weekly hours to work. Id. This Court affirmed the Board and noted that, because the claimant did not have an extensive work history, it is impossible to know whether or not four weeks without any work whatsoever is merely sporadic or whether this is unusual. Id. at 13. This Court agreed with the Board s approach that excluded weeks where the claimant had no earned wages, and included weeks where the claimant s wages were comparatively very low. Id. This Court held that the Board s approach was a fair compromise in this situation . . . [and] is correct because . . . it fairly assesses [the claimant s] earnings when he was actually working ¦. Id. Our Court also noted this approach advances the purpose of Section 309(d), which is to accurately capture economic reality when calculating the AWW. Id. Just like in Burkhart, it appears that the WCJ in this case attempted to reach a fair compromise when he calculated Claimant s AWW, considering the very short length of time that Claimant was employed. Based on the Supreme Court s explanation for application of Section 309(d) of the Act, as provided in Hannaberry 12 and Colpetzer, and the approach taken by this Court in Burkhart, we do not find the WCJ s computation of Claimant s AWW to be in error. Contrary to Claimant s arguments, the WCJ s computation of the AWW accurately captures the economic reality of the particular facts and circumstances presented in this case. Accordingly, the order of the Board is affirmed. ________________________________ RENÃ E COHN JUBELIRER, Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Legrand Wellman, Petitioner v. Workers Compensation Appeal Board (Buckshot Express R-Builders, Inc.), Respondent : : : : : : : : : : : No. 1778 C.D. 2007 ORDER NOW, January 31, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED. ________________________________ RENÃ E COHN JUBELIRER, Judge

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