Submitted September 5, 2014.
[Copyrighted Material Omitted]
Appealed from No. A10-0048, A13-0215 and A13-0216. State Agency: Workers' Compensation Appeal Board.
Eric S. Borjeson, Philadelphia, for petitioner.
Peter J. Weber and Geoffrey S. Lockyer, Philadelphia, for respondent Uninsured Employers' Guaranty Fund.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE LEADBETTER.
BONNIE BRIGANCE LEADBETTER, Judge
Benjamin Anderson (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the order of the Workers' Compensation Judge (WCJ) suspending Claimant's disability benefits on the basis that his earning power exceeded his average weekly wage (AWW). We conclude that the WCJ's determination of Claimant's weekly earning power is supported by the evidence, but that the WCJ's calculation of Claimant's AWW is incorrect. We accordingly reverse the Board's order affirming the suspension of Claimant's benefits and remand to modify his benefits based on the correct AWW.
Claimant filed a claim petition against F.O. Transport, Inc. (Employer) on February 11, 2008, alleging that he sustained an injury to his right ankle and foot on December 27, 2007, while working for Employer as a truck driver. He later filed another claim petition for the same injury against both Employer and the Uninsured Employers Guaranty Fund (Fund). To support the claim petitions, Claimant testified as follows.
Claimant applied for a truck driver position with Employer in November 2007. At that time, the owner of Employer, Frank Oostdyk, stated that Claimant would be paid 30% of Employer's charges for a load to be delivered and that he would earn $1100 to $1200 a week. Claimant was also told that he would additionally receive $100 for each run to pay lumpers. After he was hired, Claimant made a first run on December 20, 2007. In the first run, Claimant unloaded the truck himself and kept the $100 lumper fees received from Oostdyk because the $100 was allegedly not enough to pay lumpers. In his second run to Maine on December 21, Claimant paid lumpers with the $100.
In his third run on December 27, 2007, Claimant was directed to pick up a load in Philadelphia, stop in Springfield, Massachusetts and then proceed to Hatfield, Massachusetts. After arriving at Hatfield, he started to unload the truck himself using a pallet jack because he allegedly did not have enough money to pay a lumper. While unloading, he injured his right leg when it was caught between the back of the pallet jack and the skid. He testified that he sustained the injury " a week-and-a-half" or " two weeks" after he was hired. June 30, 2008 Hearing, Notes of Testimony (N.T.) at 8; Reproduced Record (R.R.) at 17a. After the injury, he received disability benefits under the insurance policy purchased by Employer for its drivers. Oostdyk testified that Claimant was told in November 2007 that he could have five or six runs per week, earning $900 to $1000.
Claimant's treating physician, Dr. Pekkar Mooar, a board-certified orthopedic surgeon, opined that Claimant sustained a bimalleolar fracture, i.e., a fracture on both sides of the ankle joint, on December 27,
2007 and was unable to return to his pre-injury position. Dr. Paul Horenstein, a board-certified orthopedic surgeon, who performed an independent medical examination on January 21, 2009, found that although Claimant had some difficulty with heel and toe walking, he could return to a truck driver position.
Accepting the testimony of Claimant and Dr. Mooar as credible and rejecting the testimony of Oostdyk and Dr. Horenstein, the WCJ found that Claimant was an employee, not an independent contractor, and that he had not fully recovered from the work injury and was unable to return to his pre-injury position. The WCJ further found that Claimant had no set work hours or work days, and that the most he earned in one run was $270. The WCJ concluded that Claimant's AWW could not be calculated under 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). Section 309(d.2) provides that " [i]f the employe has worked less than a complete period of thirteen calendar weeks and does not have fixed weekly wages, the [AWW] shall be the hourly wage rate multiplied by the number of hours the employe was expected to work per week under the terms of employment." Using an alternative method, the WCJ ...