Anderson v. Workers' Compensation Appeal Board
111 A.3d 238
| Pa. Commw. Ct. | 2015Background
- Anderson, a truck driver hired November 2007, injured his right ankle unloading a truck on December 27, 2007; he filed WC claim petitions against his employer and the Uninsured Employers Guaranty Fund.
- WCJ credited Anderson’s testimony that he was an employee (not independent contractor), found he could not return to his pre-injury job, and initially computed an AWW of $405 using an alternative method, awarding weekly benefits.
- The Board affirmed but remanded to recalculate AWW and to make the Fund secondarily liable; the Fund later sought suspension/modification alleging Anderson had post-injury earning power equal to or exceeding his pre-injury AWW.
- On remand the WCJ (1) denied inclusion of $200 in lumper fees in AWW based on credibility findings, (2) credited Dr. Horenstein’s opinion that Anderson could work full-time with restrictions, and (3) credited a labor-market survey locating full-time jobs paying $360–$440 weekly, concluding earning power $440 and suspending benefits.
- This Court held the WCJ’s vocational and medical credibility findings were supported by substantial evidence, but the WCJ’s AWW calculation was legally erroneous and should be $810 (reflecting the week Anderson actually earned wages), not $405.
- Result: Court reversed the Board insofar as it affirmed suspension based on the incorrect AWW, remanded to modify benefits using AWW $810 and earning power $440; affirmed other aspects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Correct method to calculate AWW for recently hired worker with <13 weeks and no fixed hours | Anderson: AWW should reflect his full pre-injury weekly receipts ($810 or $900–$1,200 per his testimony) and include $200 lumper fees | Employer/Fund: WCJ alternative method producing $405 was appropriate; lumper fees not wages | Court: Section 309(d.2) inapplicable; consistent with Burkhart/Hannaberry, exclude week with no wages and set AWW = $810; lumper fees excluded based on WCJ credibility findings |
| Whether medical opinion showing capability for full-time work was equivocal | Anderson: Dr. Horenstein’s testimony was equivocal because he acknowledged degenerative arthritis related to the injury | Fund: Dr. Horenstein unequivocally testified claimant could perform listed jobs with restrictions | Court: Dr. Horenstein did not recant the opinion that claimant could work with restrictions; opinion not equivocal |
| Vocational suitability of jobs located by employer’s expert given claimant’s convictions and skill set | Anderson: Convictions and lack of cashier/switchboard experience make the positions unsuitable | Fund: Labor-market survey located suitable positions; convictions were remote and not disqualifying | Court: WCJ reasonably credited employer expert (Terranova) over claimant’s expert (Young); positions vocationally appropriate |
| Whether claimant’s benefits may be suspended based solely on demonstrated earning power | Anderson: Suspension improper given disputed AWW and vocational suitability | Fund: Suspension proper if earning power ≥ pre-injury AWW | Court: Employer may suspend upon proving earning power; but suspension must be based on correct AWW — remanded to modify benefits using AWW $810 and earning power $440 |
Key Cases Cited
- Reifsnyder v. Workers’ Comp. Appeal Bd. (Dana Corp.), 883 A.2d 537 (Pa. 2005) (describing use of Section 309(d.2) when hourly rate and expected hours are known)
- Hannaberry HVAC v. Workers’ Comp. Appeal Bd. (Snyder), 834 A.2d 524 (Pa. 2003) (AWW must reflect economic reality and avoid grossly inaccurate measures)
- Triangle Bldg. Ctr. v. Workers’ Comp. Appeal Bd. (Linch), 746 A.2d 1108 (Pa. 2000) (AWW should reasonably reflect preinjury earning experience with benefit of doubt to claimant)
- Burkhart Refractory Installation v. Workers’ Comp. Appeal Bd. (Christ), 896 A.2d 9 (Pa. Cmwlth. 2006) (exclude weeks with no wages when they would distort AWW for recently hired workers)
- Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013) (employer must prove open jobs claimant can perform and reasonably pursue to establish earning power)
- ARMCO, Inc. v. Workmen’s Comp. Appeal Bd. (Carrodus), 590 A.2d 827 (Pa. Cmwlth. 1991) (medical testimony is unequivocal if expert maintains belief that stated facts exist)