Burkhart Refractory Installation v. Workers

Docket Nº:2275 CD 2005
Party Name:Burkhart Refractory Installation v. Workers
Case Date:March 30, 2006
Court:Court of Appeals of Pennsylvania
 
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Burkhart Refractory Installation, Petitioner

v.

Workers’ Compensation Appeal Board (Christ), Respondent

No. 2275 C.D. 2005

Court of Appeals of Pennsylvania

March 30, 2006

Submitted: February 10, 2006

BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge

OPINION

JIM FLAHERTY, Senior Judge

Burkhart Refractory Installation (Employer) petitions for review of a decision of the Workers’ Compensation Appeal Board (Board) which affirmed as modified the decision of a Workers’ Compensation Judge (WCJ) granting the Petition to Review Compensation filed by Roy Christ (Claimant). We affirm.

Claimant’s first day of work for Employer was March 8, 2002. Claimant began receiving benefits pursuant to a Temporary Notice of Compensation Payable (TNCP) for an injury that occurred on June 24, 2002. Thereafter, Employer filed a Petition to Review Compensation Benefits contending that the Average Weekly Wage (AWW) was incorrect. Also, Claimant filed a Petition alleging that the AWW in the TNCP is incorrect.

Oliver Harrison Burkhart, the president of Employer, testified before the WCJ. In his opinion, the WCJ summarized his testimony as follows:

1. … Sometimes the work is due to an emergency situation; and at other times, the work is purely maintenance that can be scheduled ahead of time. He stated the work is sporadic. He is familiar with the Claimant, who was hired in a laboring position with no specific number of work hours. He does not recall telling the Claimant the work was sporadic, but he admitted that he normally does communicate the off and on nature of work. He stated that the Claimant’s work hours varied from week to week, just as all laborers did. Mr. Burkhart stated that the only workers that get fairly steady work would be the long-term foremen. He stated that work schedules are posted for one job only and that subsequent postings would be for a different job. Most of the time, the workers are on-call.

(WCJ’s 9/21/2004 Decision, p. 2).

The WCJ granted the Petition to Review Compensation Benefits and determined that Claimant’s AWW was $311.82. Claimant appealed to the Board, which determined that Claimant’s AWW should be $454.17. The Board determined that a strict application of Section 309(d.2) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(d.2), did not afford a determination that reflected economic reality because, although Claimant worked less than 13 weeks at the time of the injury, he did not have an expected number of weekly hours to work. Consequently, the Board determined that a permissible alternative must be used to calculate Claimant’s AWW. Although Claimant was employed for 16 weeks, he only actually earned wages during 12 of those weeks. Accordingly, the Board arrived at an AWW by dividing Claimant’s gross wages by 12. The Board based this decision on the Supreme Court case of Hannaberry HVAC v. WCAB (Snyder, Jr.), 576 Pa. 66, 834 A.2d 524 (2003), in which the Court held thatthat subsection (d) does not control the calculation in a circumstance, such as...

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