Sadler v. Workers' Comp. Appeal Bd., 328 C.D. 2018

CourtCommonwealth Court of Pennsylvania
Citation210 A.3d 372
Docket NumberNo. 328 C.D. 2018,328 C.D. 2018
Parties Carl SADLER, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (PHILADELPHIA COCA-COLA), Respondent
Decision Date22 May 2019

Richard A. Jaffe, Philadelphia, for petitioner.

Andrea Weaver, Media, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge,1 HONORABLE ANNE E. COVEY, Judge (P.), HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE COHN JUBELIRER

Carl Sadler (Claimant) petitions for review of the February 16, 2018 Order of the Workers' Compensation (WC) Appeal Board (Board) that affirmed, as modified, the Decision of the Workers' Compensation Judge (WCJ). The WCJ denied in part Claimant's Petition to Review WC Benefits (Review Petition) because Claimant failed to establish that his average weekly wage (AWW) was incorrectly calculated, and granted Philadelphia Coca-Cola's (Employer) Petition to Suspend WC Benefits (Suspension Petition) for 525 days on the basis that Claimant, under Section 306(a.1) of the WC Act,2 was "incarcerated after a conviction."3 On appeal, Claimant raises two issues. First, he argues that the WCJ incorrectly calculated his AWW because there is not substantial evidence that he was expected to work only 40 hours per week. Second, Claimant argues that it was error to suspend his benefits because he spent 525 days in pretrial incarceration, which, upon his conviction, was credited as time served, and this time does not meet the statutory requirement, "any period during which [he was] incarcerated after a conviction." 77 P.S. § 511.1 (emphasis added). We find merit in Claimant's arguments. The credited testimony was that Claimant was expected to work overtime during the summer, which the WCJ did not consider in calculating Claimant's AWW. Moreover, under the plain language of Section 306(a.1), incarceration that occurs before a conviction, due to the inability to meet bail, is not a "period during which the employe is incarcerated after a conviction," and such an interpretation would be inconsistent with the fundamental principles underlying the WC Act and its purpose. Id. Therefore, we will remand for a recalculation of Claimant's AWW, and will reverse the suspension of Claimant's WC benefits.

I. Factual and Procedural Background
A. Petitions

On July 2, 2012, Claimant sustained an injury while working as a production manager with Employer. Employer issued a Notice of Temporary Compensation Payable, which was subsequently converted, as a matter of law, to a Notice of Compensation Payable (NCP). The NCP recognized Claimant's injuries as right pinky finger amputation and low back sprain

, entitling Claimant to a weekly disability rate of $ 652 based upon an AWW of $ 978.

On April 7, 2015, Claimant filed the Review Petition claiming that his AWW was miscalculated in violation of Section 309(d.2) of the WC Act4 and that his AWW should have been no less than $ 1412.04, thereby entitling him to the maximum weekly disability rate of $ 888. Claimant also alleged an incorrect description of injury.5 Claimant further sought penalties for Employer's miscalculation of his AWW.

On May 12, 2015, Employer filed the Suspension Petition, claiming that Claimant's benefits should be suspended because he spent 525 days in jail prior to his conviction and because he was credited with having served that time upon his conviction on January 22, 2015, Claimant should not be unjustly enriched and his benefits should be adjusted accordingly.

B. Hearings Before the WCJ

At the hearing before the WCJ, Claimant testified that at the time of his injury, he had been working for Employer for about four weeks. His normal rate of pay was $ 24.45 per hour. Typically, he worked for 10 hours a day from 5:30 a.m. until 3:30 p.m. for 6 days a week, or 60 hours a week. When he met with Dennis Veneri, who hired Claimant, Claimant was told to expect to work 10 hours a day, 6 days a week, at $ 24.45 an hour. There was never a week he did not work overtime, Claimant testified. In the summer, because of increased supply and demand, Claimant was told he would work in excess of 60 hours. He was never told that during the summer he would work 60 hours and, thereafter, his hours would be reduced. A Statement of Wages indicated, however, that Claimant worked 40 hours per week. Claimant stated that the Statement of Wages was inaccurate. Pay stubs entered into evidence indicated the following:

  Week                Regular Hours     Overtime Hours     Total Hours
                  6/12/12-6/17/12     34.5              5                  39.5
                  6/18/12-6/24/12     40                22.52              62.52
                  6/25/12-7/01/12     40                10.02              50.02
                  7/02/12-7/08/12     10                0                  10
                

(Certified Record (C.R.) Items 23, 27.)

Veneri testified that Employer employed him as Director of Maintenance for the Philadelphia Erie Facility, a position he held for five years. Veneri was involved in the hiring of employees. Veneri hired Claimant to work as a maintenance mechanic. The normal working hours are 4 10-hour shifts, but during the busy season, employees will work an extra day or 2 days for another 10-hour shift. In response to the question by Employer "[h]ow many hours was [Claimant] expected to work per week under the terms of his employment," Veneri answered "it was a four ten-hour shift, but it was explained to [him] that there could and probably would be overtime because it was the busy time of the year when he was hired." (C.R. Item 20, Hr'g Tr., Oct. 22, 2015, at 6.) In response to the question of "would that overtime be guaranteed overtime," Veneri answered, "In the busy season more than likely yes, because it was busy." (Id. ) Veneri clarified that the busy season is "typically the hundred days of summer." (Id. ) For overtime, Veneri noted, an employee received time and a half. Outside of summer, sometimes there was still overtime, depending on the schedule. Veneri noted that Claimant's paychecks showed that Claimant was paid a "job premium" rate, which was .35 cents per hour, and a "job premium overtime" rate, which was .525 cents; this reflected, Veneri testified, that Claimant was paid "a little extra" for working 10-hour shifts. (Id. at 9-11.)

Regarding Claimant's incarceration, the parties stipulated that Claimant was first incarcerated on August 16, 2013, when, upon being charged, he could not meet bail. On January 22, 2015, Claimant pleaded guilty and was sentenced to 525 days time served. He received credit for the 525 days he spent incarcerated prior to his conviction and, therefore, was released from incarceration on January 22, 2015, the date of his conviction. (Id. at 18-19.)

C. The WCJ's Decision

The WCJ granted the Review Petition in part and denied it in part and granted Employer's Suspension Petition. (WCJ Decision, Conclusions of Law (COL) ¶¶ 2-4.) The WCJ granted the Review Petition to the extent Claimant alleged he sustained additional injuries6 as a result of his work accident, which Employer acknowledged in a Stipulation of Facts. (WCJ Decision, Findings of Fact (FOF) ¶¶ 22-23; C.R. Item 30, Stipulation of Facts ¶ 3.) The WCJ denied the Review Petition to the extent Claimant alleged that his AWW was incorrectly calculated.7 (Id. ¶ 16.) The WCJ found no dispute as to the authenticity of the pay stubs and that they were "a credible and accurate representation of the hours" Claimant worked. (Id. ¶ 9.) However, the WCJ did not credit Claimant's testimony on this issue, instead crediting Veneri's testimony. (Id. ¶¶ 12-13.) The WCJ explained that having viewed Claimant's "demeanor and comportment" and considered that Claimant acknowledged that Employer expected all employees to work overtime if requested and that Claimant's paystubs did not reflect "a base of sixty hours per week," Claimant was not credible on the number of hours he was expected to work each week. (Id. ¶ 12.) Veneri, in contrast, was credible, the WCJ found, because, having viewed "his demeanor and comportment," and considering the years he spent hiring potential employees for Employer, he was the "the best individual to know the terms of employment for a mechanic in the Maintenance Department" of Employer. (Id. ¶ 13.) Therefore, the WCJ concluded, Claimant "was hired to work a forty-hour work week with probable overtime during the busy season or 100 days of summer." (Id. ¶ 14.) The WCJ further found "Claimant actually worked on average a forty-hours [sic] during the short time he worked for the Employer prior to his injury." (Id. ¶ 15.)

On the incarceration issue, the WCJ concluded that Employer was entitled to reimbursement for benefits paid to Claimant during the 525 days Claimant was incarcerated. (Id. ¶ 21.) The WCJ ordered that Employer not be given a future credit against benefits to be paid to Claimant, but that Employer petition the Supersedeas Fund for reimbursement. (COL ¶ 4.)

D. The Board's Opinion

Employer appealed and Claimant cross-appealed from the WCJ's Decision to the Board. The Board modified the WCJ's Decision by allowing Employer to seek reimbursement for total disability compensation paid to Claimant while he was incarcerated via a credit against future disability payments to Claimant rather than requiring Employer to seek reimbursement through the Supersedeas Fund. (Board Op. at 10.) The Board otherwise affirmed the WCJ's Decision.8

II. Appeal to this Court

On appeal,9 Claimant raises two issues for our consideration. First, he argues that the WCJ incorrectly calculated his AWW because there is not substantial evidence that he was expected to work only 40 hours per week but that, at least during the summer, he was expected to work overtime; second, he argues that it was error to suspend his benefits because he spent 525 days in pretrial incarceration, which, upon his conviction, was credited as time served, and this time does not meet the statutory requirement "any period during which [h...

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5 cases
  • Sadler v. Philadelphia Coca-Cola
    • United States
    • Pennsylvania Commonwealth Court
    • January 7, 2022
    ...due to his inability to post bail, was convicted, and sentenced to time served. In Sadler v. Workers’ Compensation Appeal Board (Philadelphia Coca-Cola) , 210 A.3d 372, 379, 383-84 (Pa. Cmwlth. 2019) (Sadler I ), this Court reversed the WCJ's decision granting the suspension petition and re......
  • Sadler v. Phila. Coca-Cola Co.
    • United States
    • Pennsylvania Supreme Court
    • January 27, 2021
    ...as is required pursuant to the clear language of Section 306(a.1). The Commonwealth Court agreed. Sadler v. WCAB (Philadelphia Coca-Cola) , 210 A.3d 372 (Pa. Cmwlth. 2019). The Commonwealth Court stressed that Sadler's pre-conviction incarceration was due to his inability to post bail and t......
  • Sadler v. Phila. Coca-Cola (Workers' Comp. Appeal Board)
    • United States
    • Pennsylvania Commonwealth Court
    • January 7, 2022
  • Sadler v. Phila. Coca-Cola
    • United States
    • Pennsylvania Commonwealth Court
    • January 7, 2022
    ... Carl Sadler, Petitioner v. Philadelphia Coca-Cola (Workers' Compensation Appeal Board), Respondent No. 1294 C.D. 2020 Commonwealth Court of Pennsylvania ... (Board ... Opinion (Op.) at 5 (citing Caputo v. Workers' Comp ... Appeal Bd. (Commonwealth of Pa.) , 34 A.3d 908, 919 (Pa ... Cmwlth. 2012)).) ... ...
  • Request a trial to view additional results

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