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Jeffrey A. Lenzi v. Workers' Compensation Appeal Board (Victor Paving

October 13, 2011

JEFFREY A. LENZI, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (VICTOR PAVING), RESPONDENT



The opinion of the court was delivered by: Senior Judge Kelley

Submitted: July 29, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY SENIOR JUDGE KELLEY

Jeffrey A. Lenzi (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming an order of a Workers' Compensation Judge (WCJ) granting Claimant benefits pursuant to the Pennsylvania Workers' Compensation Act (Act),*fn1 but excluding unemployment compensation benefits from the calculation of Claimant's average weekly wage. We affirm.

Claimant began his work as a truck driver for Victor Paving (Employer) in June 2006. On July 30, 2007, Claimant was injured in the course and scope of his work for Employer when he slipped and fell from a ladder on his truck after dislodging a tarp.*fn2 Claimant timely filed a Claim Petition pursuant to the Act, and Employer timely filed an Answer thereto denying all material allegations. Hearings ensued before the WCJ.

Before the WCJ, both parties submitted calculations of Claimant's average weekly wage (AWW) with concomitant proposed compensation rates under the Act. In the parties' respective calculations, Claimant included unemployment compensation benefits he had received during the year preceding his injuries;*fn3 Employer excluded Claimant's unemployment benefits in its calculation of Claimant's AWW. Claimant's calculations produced a rate of $345.19 for the AWW, resulting in a weekly compensation rate under the Act of $310.67. WCJ Decision and Order dated February 10, 2009, (hereinafter, WCJ Decision) at 2. Employer's calculations produced an AWW of $174.99, resulting in a weekly compensation rate of $157.49. Id.

In part relevant to the instant matter, the WCJ granted Claimant's Claim Petition, concluding that he sustained compensable work-related injuries to his right shoulder, right biceps, and left foot. The WCJ awarded benefits from August 25, 2007, ongoing. Regarding the proper applicable AWW, the parties argued as follows:

Claimant argues that the Supreme Court's holding in Reifsnyder v. [Workers' Compensation Appeal Board (Dana Corp.), 584 Pa. 341, 883 A.2d 537 (2005)] should be expanded to include unemployment compensation benefits in the calculation of the average weekly wage. Claimant argues the inclusion of unemployment compensation benefits "would provide a truer measure of his actual earnings."

Employer argues that the Supreme Court decision in Reifsnyder contained concurrent opinions of the three Justices, and was "not conclusive that unemployment compensation benefits are to be included in calculating the average weekly wage." Employer argued that "there is no truer measure of the average weekly wage amount for an injured worker other than the wages actually received, not inclusive as unemployment compensation payments."

WCJ Decision at 4-5 (citations omitted). Regarding his resolution of the AWW calculation issue, the WCJ found:

In addressing the average weekly wage calculation. [Sic.] Essentially, the difference is that [C]laimant includes unemployment compensation benefits and [E]mployer does not. Compare Employer A with Claimant's 5. Claimant argues for an extension of existing law to reach the remedy

[C]laimant advocates. Claimant tries to argue by analogy the Reifsnyder case and refers to a concurring opinion. That obviously is not precedent. It significantly lowers

[C]laimant's wages not to include the unemployment compensation benefits, and obviously lowers significantly the compensation rate. Claimant makes a case that he is undercompensated by the compensation rate. However,

[C]laimant essentially asks for a rewriting of the average weekly wage calculation. Claimant does not persuasively argue enough facts to bring his compensation calculation within the holding of Hannaberry HVAC v. [Workers' Compensation Appeal Board (Snyder, Jr.), 575 Pa. 66, 834 A.2d 524 (2003)]. That holding allows the analyzing of whether the compensation calculation is an accurate determination of what [C]laimant's earnings would have been if he had not been injured. It aims to compensation [sic] the [C]laimant justly, but, at the same time, not imposing too great a burden on the [E]mployer. I am aware that [C]laimant essentially argues that Hannaberry should be read with the concurrences in Reifsnyder to reach the conclusion that unemployment compensation benefits are included in the wage calculation. However, the Supreme Court holding did not go that far. There is not even the indication that the right ...


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