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11/14/97 MICHAEL STOFA v. WORKERS' COMPENSATION

November 14, 1997

MICHAEL STOFA, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (FLORENCE MINING COMPANY), RESPONDENT



Appealed From No. A95-2058. State Agency, Workers' Compensation Appeal Board.

Before: Honorable James Gardner Colins, President Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Senior Judge Jiuliante. Judge Leadbetter Dissents.

The opinion of the court was delivered by: Jiuliante

OPINION BY

SENIOR JUDGE JIULIANTE

FILED: November 14, 1997

Michael Stofa (Claimant) petitions for our review of a March 27, 1997 order of the Workers' Compensation Appeal Board (Board) which reversed a decision of a Workers' Compensation Judge (WCJ) denying a termination petition filed by the Florence Mining Company (Employer).

The sole issue before this Court concerns the calculation of Claimant's partial disability benefits for a period of time during which he was employed by a public school district as a full-time teacher. Claimant's medical condition is not in dispute.

In September 1987, Claimant suffered a back injury while working for Employer as a laborer in underground mining. He received total disability benefits pursuant to a notice of compensation payable. In 1993, Employer filed a petition seeking termination of Claimant's benefits effective November 30, 1993, based upon the results of an independent medical evaluation. In his answer to the petition, Claimant denied that he was able to return to his pre-injury employment.

During hearings before the WCJ, Claimant explained that he had returned to college and obtained his teaching certificate. Claimant worked as a substitute teacher from March 18, 1994 through May 27, 1994, and from May 18, 1994 through June 30, 1994, with two different school districts. Claimant then obtained a full-time teaching position, commencing August 24, 1994. According to Claimant's contract for the position, it was "for a term of 184 days for an annual compensation of $25,928.00." As a result of Claimant's testimony, Employer amended its termination petition to include a request for modification based upon Claimant's earnings as a substitute teacher, and a suspension effective August 26, 1994, based upon his earnings as a full-time teacher.

On April 21, 1995, the WCJ issued a decision denying Employer's request for termination, but modifying Claimant's benefits based upon his earnings as a schoolteacher. Specifically, the WCJ ordered that Claimant's compensation be reduced for the period May 18, 1994 through June 30, 1994, when he was employed as a substitute teacher, and suspended from August 26, 1994 to May 9, 1995, when he was employed full time. The WCJ calculated that Claimant's average weekly wage during the 184 days (9.2 months) of full-time teaching was $704.57, which would exceed Claimant's pre-injury wage. The WCJ also concluded that total disability benefits should be reinstated commencing May 10, 1995, until Claimant's condition or employment status changes.

Employer appealed that portion of the WCJ's decision which calculated Claimant's average weekly wage for the time periods during which he taught as a substitute and as a full-time teacher, and which reinstated Claimant's total disability benefits as of May 10, 1994. The Board reversed the WCJ's decision, agreeing with Employer that the average weekly wage for the time Claimant was teaching full time should be calculated by dividing his salary by 52 weeks rather than 9.2 months. Claimant has appealed, seeking to reinstate the WCJ's decision.

Partial disability benefits are available under Section 306(b)(1) of the Workers' Compensation Act (the Act) *fn1, at a rate of sixty-six and two thirds per centum of the difference between a claimant's pre-injury average weekly wage, and his "earning power." Although the Act does not define "earning power" in terms of actual wages earned, *fn2 actual wages are one of the factors to be considered in determining the earning power of an injured claimant. Roadway Express, Inc. v. Workmen's Compensation Appeal Board (Connery), 110 Pa. Commw. 535, 532 A.2d 1241 (Pa. Commw. 1987). Section 309(c) of the Act, 77 P.S. § 582(c), addresses the computation of wages for purposes of determining compensation. This section provides:

Wherever in this article the term "wages" is used, it shall be construed to mean the average weekly wages of the ...


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