Pike v. Workers' Compensation Appeal Board
2011 Pa. Commw. LEXIS 237
Pa. Commw. Ct.2011Background
- Claimant Gregory Pike injured on October 28, 2004 while employed by Vesely Brothers Moving and Storage; pre-injury AWW varied across notices and wage statements.
- WCJ determined AWW using 13-week periods, averaging the three highest of the last four before injury per Section 309(d).
- Claimant testified to a job change on August 1, 2004 from warehouse laborer to Class A certified driver paid on a commission basis with variable expenses.
- Claimant claimed deductions on his 2004 Schedule C (including depreciation and home office) reduced net income used for AWW calculations.
- Board affirmed WCJ’s AWW result and that deductions were properly subtracted because the claimant did not file an amended tax return.
- This Court reviews whether Hannaberry and related case law require a different approach or add-backs to income for AWW calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should Hannaberry apply to compute AWW instead of 309(d)? | Pike argues Hannaberry reflects economic reality for a promoted employee and supports using the fourth period alone. | Employer/Board contend 309(d) applies; Hannaberry not controlling since this is a long-term employee and not a part-time-to-full-time transition. | 309(d) controls; Hannaberry not applied. |
| Whether depreciation and home office deductions should be added back to income for AWW. | Depreciation and home-office deductions should be added back because they reflect avoided personal expenses. | Deductions were properly subtracted as claimed Net Income per the tax return; no amended return shown. | Deductions properly subtracted; no addition-back. |
| Whether the fourth 13-week period earnings were sufficiently representative to alter AWW calculation. | The August 1, 2004–October 28, 2004 earnings were unusually high and should reflect future earnings. | No sufficient evidence that fourth period earnings reflect typical future earnings; 309(d) look-back applies. | Fourth period not used to override Section 309(d). |
Key Cases Cited
- Hannaberry HVAC v. W.C.A.B. (Snyder Jr.), 575 Pa. 66, 834 A.2d 524 (Pa. 2003) (look-forward/realistic earnings when transition from part-time to full-time necessary)
- Nortim, Inc. v. Workmen’s Compensation Appeal Board (Rolick), 150 Pa.Cmwlth.196, 615 A.2d 873 (Pa. Cmwlth. 1992) (only actual paid expenses in the relevant quarter may be deducted)
- Philip Morris/Kraft Foods, Inc. v. W.C.A.B. (Levan), 689 A.2d 986 (Pa. Cmwlth. 1997) (use of tax returns to determine net business income for wages)
- Reifsnyder v. W.C.A.B. (Dana Corporation), 584 Pa. 341, 883 A.2d 537 (Pa. 2005) (long-term employment look-back vs. d.2 forward-looking approach)
- Mullen v. W.C.A.B. (Mullen’s Truck & Auto Repair), 945 A.2d 813 (Pa. Cmwlth. 2008) (net business income limited to net profits shown on tax return)