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Toigo Orchards, LLC v. Workers' Compensation Appeal Board (Gaffney)

Commonwealth Court of Pennsylvania

March 13, 2017

Toigo Orchards, LLC and Nationwide Insurance Company, Petitioners
Workers' Compensation Appeal Board (Gaffney), Respondent

          Argued: December 12, 2016




         Toigo Orchards, LLC, and its insurer, Nationwide Insurance Company (together, Employer), petition for review from the April 13, 2016 Order of the Workers' Compensation Appeal Board (Board), modifying in part, and affirming otherwise, the Workers' Compensation Judge's (WCJ) July 14, 2015 Final Decision and Order that granted Earl Gaffney (Claimant) specific loss benefits for the loss of vision in his left eye. Because Claimant had been retired in Florida prior to being hired as a tractor driver to move bins during the apple-picking season, and returned to retirement in Florida after his injury, there are questions about whether he was a seasonal employee, for purposes of determining the correct average weekly wage (AWW), and whether he should be awarded a healing period. On appeal, Employer argues that the Board erred by: (1) reversing the WCJ's determination that Claimant was a seasonal employee within the meaning of Section 309(e) of the Workers' Compensation Act (Act), [1] 77 P.S. § 582(e); (2) reversing and modifying the WCJ's calculation of Claimant's AWW as a seasonal employee pursuant to Section 309(e) of the Act; and (3) reversing the WCJ's decision to omit an award for a healing period pursuant to Section 306(c)(25) of the Act, 77 P.S. § 513(25). In addition, if the Court concludes that the WCJ properly classified Claimant as a seasonal employee, Claimant has asked whether his AWW should be calculated using the expected earnings provision of Section 309(d.2) of the Act, 77 P.S. § 582(d.2), [2] rather than using Section 309(e), because he had worked less than 13 weeks for Employer at the time of his injury. Upon review, we affirm in part and reverse in part.

         I. BACKGROUND

         A. Proceedings before the WCJ

         On October 8, 2013, Claimant sustained a work-related injury while working for Employer. (Claim Petition, R.R. at 2a.) At the time of the injury, Claimant worked for Employer at the rate of $9.00 per hour and was hired to drive a tractor and move bins for apple pickers in the orchard. (Id. at 4a.) Employer issued a Notice of Temporary Compensation Payable to Claimant on October 29, 2013, and filed a Corrected Statement of Wages with the Bureau of Workers' Compensation on December 2, 2013, providing a wage calculation based on seasonal employment. (R.R. at 34a-35a.) The resulting AWW was determined to be $35.10 with a compensation rate of $31.59 per week. (Id. at 35a.) On January 3, 2014, Employer issued a Medical Only Notice of Compensation Payable to Claimant for an injury described as traumatic iridocyclitis with cystoid macular edema of the left eye. (Board Op. at 1.) Claimant filed a Claim Petition on July 1, 2014, seeking specific loss benefits for the loss of vision in his left eye, indicating that his injury caused him to stop working, and listing Claimant's job title as "Laborer." (R.R. at 3a-4a.) Employer filed an Answer denying all material allegations of Claimant's Petition. (Id. at 8a.)

         A pre-trial hearing on the Claim Petition was held before the WCJ on July 29, 2014. (Hr'g Tr., July 29, 2014, R.R. at 38a.) A second hearing was held on December 10, 2014, at which the WCJ bifurcated the proceeding, to first decide Claimant's status and whether Claimant's AWW should be calculated as a seasonal employee, and second the medical issues. (Hr'g Tr., Dec. 10, 2014, R.R. at 52a, 122a.) Claimant's Counsel appeared, and Claimant testified via telephone.

         Employer appeared and offered the testimony of Jeremiah Calloway, a Federal Crew Chief. A number of documents were entered into evidence, including Claimant's paystubs and Mr. Calloway's Farm Labor Contractor Certificate of Registration.

          Claimant testified as follows.[3] He started working for Employer at the beginning of September 2013 as a tractor driver and had previously worked for Employer about 30 years ago as an apple picker. He did not pick fruit for Employer, but moved bins for the apple pickers as they moved from tree to tree, and he did no other work on the farm. Claimant earned $9.00 per hour, his normal working hours were 7:00 a.m. to 5:00 p.m., and he worked five days a week, Monday through Friday. He was hired only for the apple season and was not promised more work by Mr. Calloway, a lifelong friend, who hired him. His eye injury occurred when a tree limb knocked his glasses off and scratched his eye as he was getting off of a tractor, he did not return to work afterwards, and he remained in Pennsylvania for approximately two weeks after his injury occurred before returning to Florida. He received Social Security retirement benefits in Florida for about six years prior to starting employment with Employer, and currently receives those benefits; his last job was six and a half years ago working at a chemical plant making fertilizer. Claimant stopped receiving Social Security retirement benefits while he worked for Employer, and when he returned to his home in Florida, he began receiving them again. There was another tractor driver who worked for Employer year-round.

         Mr. Calloway testified as follows.[4] He was a Federal Crew Chief for Employer, registered under the Migrant and Seasonal Agricultural Worker Protection Act, [5] whose purpose he explained is to bring people from one state to the next to harvest crops, though he does not transport them. He hired Claimant, with whom he went to school, for the temporary job of driving a tractor around the orchard, not to pick apples. Claimant's job included hauling and moving people and bins around the orchard. Apple season lasts from September to November, and he did not promise Claimant work after the apple harvest was over. He and the other workers, including Claimant, did not work in the rain. Most of the time, Claimant did work 10-11 hours a day. Mr. Calloway also explained the duties of Employer's year-round tractor driver, which include spraying, taking care of the farm, computer duties, and, during the apple harvest, hauling apples out of the orchard. Mr. Calloway lived in Florida and hired crews only for Employer; when the harvest was over, he returned to Florida.

         In an initial interlocutory order memorandum, the WCJ credited both Claimant's and Mr. Calloway's testimony and found that the job Claimant was hired to perform "was as an extra tractor driver during the apple harvest, " and that the duration of employment was directly associated with the length of the apple picking season. (WCJ Interlocutory Order Memorandum at 4, Findings of Fact (FOF) ¶¶ 6-10.) The WCJ concluded that Claimant's employment as an "extra tractor driver during the apple harvest" was exclusively seasonal employment. (Id.) The WCJ further concluded that the Corrected Statement of Wages used the correct calculation. (Id., Conclusion of Law (COL) ¶ 1.) Thus, the WCJ granted the Claim Petition and ordered that Claimant's AWW be calculated based on the seasonal employment calculation used in the Corrected Statement of Wages. (WCJ Interlocutory Order.)

         Upon request that a final decision and order be rendered, the WCJ subsequently issued a final order making the same findings of fact as the interlocutory order memorandum. (WCJ Final Decision and Order, FOF ¶¶ 12-13.) The WCJ concluded that Claimant met his burden of establishing by sufficient, competent, and credible evidence that he sustained a work injury to his left eye on October 8, 2013, resulting in the total loss of use of his left eye for all intents and purposes. (Id., COL ¶ 1.) Accordingly, the WCJ awarded Claimant specific loss benefits of 275 weeks at $31.59 per week based upon an AWW of $35.10, for a total of $8, 687.25, plus litigation costs to Claimant. (WCJ Final Order.)

         B. Proceedings before the Board

         Claimant appealed the WCJ's Final Decision and Order to the Board, arguing first that the WCJ erred in finding that he was a seasonal worker. The Board concluded "that the WCJ erred by imposing too narrow a construction upon Claimant's employment, " and that the inquiry should have focused "on the nature of the work, not the period during which the employer operates, " pursuant to Froehly v. T.M. Harton Co., 139 A. 727 (Pa. 1927). (Board Op. at 6.) The Board characterized Claimant's employment as "itinerant agricultural labor, " and, while it was intended to be temporary during the orchard's period of operation, short-term employment is not synonymous with seasonal occupation. (Id. at 7.) Accordingly, the Board held that Claimant's AWW had to be calculated using a different subsection of Section 309 of the Act.

         Claimant next argued that Section 309(d.2) should be used to calculate his AWW because he worked less than 13 weeks and did not have fixed weekly wages, which would result in an AWW of $450.00 (50 hours multiplied by $9.00 per hour). The Board rejected this argument, concluding that a calculation under Section 309(d.2) does not achieve a fair assessment of Claimant's pre-injury earnings, which are known. (Id. at 7-9.) The Board instead, relying on Burkhart Refractory Installation v. Workers' Compensation Appeal Board (Christ), 896 A.2d 9, 13 (Pa. Cmwlth. 2006), used an alternative calculation, which divided Claimant's total gross earnings by the weeks worked, which yielded an AWW of $351.00 ($1, 755.00 divided by 5 weeks) and a benefit rate of $315.90.

         The Board also concluded that the WCJ erred in not awarding benefits for a 10-week healing period pursuant to Section 306(c)(25) of the Act, 77 P.S. § 513(25), and that Claimant was entitled to the 10-week healing period provided for under the Act. (Board Op. at 9-10.) Accordingly, the Board modified the WCJ's order to reflect an award of 285 weeks of benefits at the rate of $315.90 per week, and otherwise affirmed the WCJ's order. (Board Order, Apr. 13, 2016.) Employer then petitioned this Court for review.[6]

         C. Proceedings before this Court

         On June 8, 2016, Employer filed an Application for Supersedeas on Appeal (Application), requesting that this Court grant a supersedeas as to the Board's April 13, 2016 Decision and Order, which modified the WCJ's award of benefits to 285 weeks of benefits at the rate of $315.90 per week. Claimant filed an Answer to the Application. After argument, a Memorandum Opinion and Order was filed on July 27, 2016. The opinion noted that "Employer properly filed the Application with this Court to preserve its right to seek reimbursement from the Supersedeas Fund." Toigo Orchards, LLC v. Workers' Comp. Appeal Bd. (Gaffney) (Pa. Cmwlth., No. 722 C.D. 2016, filed July 27, 2016), slip op. at 5 and n.2 (citing Mark v. Workers' Comp. Appeal Bd. (McCurdy), 894 A.2d 229, 233 (Pa. Cmwlth. 2006) (setting forth requirements an employer or insurer must meet in order to seek reimbursement from the Supersedeas Fund)). However, we denied Employer's Application because it had already paid all specific loss benefits to Claimant, and, as such, there was no irreparable injury to Employer. Id., ...

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