The opinion of the court was delivered by: Senior Judge McCLOSKEY
Submitted: February 6, 2009
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
Jesse Ostrawski (Claimant) petitions for review of a March 6, 2008, order of the Workers' Compensation Appeal Board (Board) which (1) made final an earlier Board decision, dated March 22, 2007, that had (a) reversed a decision of Workers' Compensation Judge Kathleen Vallely (WCJ) granting Claimant's review and modification petitions, (b) affirmed the WCJ's conclusion that UPMC Braddock Hospital (Employer) had violated the Pennsylvania Workers' Compensation Act (Act)*fn1, and (c) remanded the WCJ's imposition of a penalty for reconsideration based upon the Board's reversal of the WCJ's decision regarding the inclusion for average weekly wage calculations of concurrent employment wages, and (2) affirmed the remand decision of Workers' Compensation Judge David Torrey (WCJ Torrey) who, with regard to the penalty aspect of the case, noted that Employer had committed a violation of the Act, but declined to impose penalties after concluding that the Employer's failure was de minimis, that Claimant had no right to benefits based on concurrent employments, and that no weekly compensation was due to Claimant. We now affirm.
Claimant worked for Employer as a security guard. On April 8, 2004, Claimant injured his right foot and ankle, which injury was ultimately diagnosed as a fracture of the right foot. At the time of his injury, Claimant also worked full-time for Am Gard American Services (Am Gard). In June, 2004, Claimant tendered his resignation to Am Gard, to be effective July 24, 2004, in anticipation of starting a new second job with Leonard Security (Leonard) that he was expected to begin on July 25, 2004. However, because of a contract issue Leonard had with a third party, Claimant did not start on that date.*fn2
Claimant continued working until September 13, 2004, at which time he underwent surgery on his right foot and was unable to work. Leonard ultimately contacted Claimant on October 13, 2004, and requested that he begin work there immediately. Claimant, however, was unable to comply with that request because he had not been released to work following his surgery for his work-related injury with Employer.
Based upon his inability to work, Employer issued a notice of temporary compensation payable indicating that Claimant was entitled to weekly wage loss benefits of $308.42 based upon an average weekly wage of $342.69. On December 9, 2004, Employer issued a corrected notice of temporary compensation payable, effective December 6, 2004, through which Employer acknowledged that Claimant, as a consequence of the surgery for his work-related injury, could return to work only in a modified position with a loss of wages. Employer thereafter paid Claimant weekly partial disability payments of $166.09, based upon earnings of $176.60 per week for his modified work position.
On January 18, 2005, Claimant filed a petition to review his compensation benefits in which he asserted that Employer, in determining his weekly benefit, had failed to include earnings from concurrent employment in calculating his average weekly wage. Claimant also filed a penalty petition asserting that Employer knew that he had concurrent employment at the time of his April, 2004, injury, and that Employer violated the Act by failing to include wages from such employment in its average weekly wage computation. The penalty petition also requested an award of counsel fees under Section 440 of the Act, 77 P.S. § 996. Employer filed responses to those petitions denying that Claimant had concurrent employment or that it had failed to properly calculate Claimant's average weekly wage.
Claimant filed a modification petition on April 11, 2005, asserting that he had sustained an increase in loss of earning power as of October 14, 2004, based upon his contention that, because of his work-related injury, he could not perform the work that had become available at Leonard in October. Employer denied the averments of this petition. Claimant's petitions were consolidated and assigned to the WCJ for purposes of hearings and disposition.
At these hearings, Claimant testified that he was able to continue his full-time employment for both Employer and Am Gard after his April 8, 2004, injury. Sometime after Claimant sustained his injury, a supervisor at Am Gard informed Claimant about a higher-paying position with Leonard. As indicated above, Leonard selected Claimant for the position, Claimant anticipated that he would begin working for Leonard on July 25, 2004, and Claimant provided Am Gard with his notice of resignation effective July 24, 2004. In anticipation of his employment with Leonard, Claimant testified that he purchased a uniform and a firearm. Further, as noted above, because of his resignation and the problem with the contract between Leonard and a third party, as of July 25, 2004, Employer became Claimant's sole wage provider.
Claimant also testified that, approximately two weeks before his September 2004, foot surgery, he spoke with Employer's human resource manager, Helene Brown, as well as representatives of Employer's "Work Partners"*fn3, Cynthia Gesuale and Judy D'Hert, in order to ask whether his benefits would reflect his loss of earnings from Am Gard. Claimant testified that both of those representatives told him that his benefits would not reflect his Am Gard employment because he had terminated said employment as of July 24, 2004. As of the time of the WCJ's hearings, Claimant had not been released to return to full-time employment and had continued to work in a modified, part-time position only twenty hours per week.
The WCJ found Claimant's testimony concerning his concurrent employment credible and rejected the testimony of Employer's witness on that subject where the testimony differed from that of Claimant. The WCJ opined that since Claimant had concurrent employment at the time of his injury in April of 2004, he was entitled to include the wages from such employment in the calculation of his average weekly wage. The WCJ also determined that Employer knew of Claimant's concurrent employment and should have included those wages in making its calculations.
Based upon these findings and conclusions, the WCJ (1) granted Claimant's review and modification petitions,*fn4 (2) imposed a twenty percent penalty based upon the conclusion that Employer had violated the Act by not including concurrent wages in making its calculations and (3) denied Claimant's request for attorney fees. Claimant thereafter appealed to the Board.
By decision and order dated March 22, 2007, the Board reversed the WCJ's grant of Claimant's review and modification petitions. The Board affirmed the WCJ insofar as she found that Employer had violated the Act by not including the wages Claimant received in his concurrent employment in the initial calculation of his average weekly wage. However, since it reversed the WCJ's grant of Claimant's review and modification petitions and since the WCJ premised her penalty award on the recalculated benefits which resulted from ...