E. Westfield v. Nutrition, Inc. (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elizabeth Westfield, :
Petitioner :
:
v. : No. 65 C.D. 2021
: ARGUED: November 18, 2021
Nutrition, Inc. (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: December 22, 2021
Elizabeth Westfield (Claimant) petitions this Court for review of the
December 30, 2020 order of the Workers’ Compensation Appeal Board (Board),
reversing in part the decision of a workers’ compensation judge (WCJ), who
awarded Claimant compensation under the Workers’ Compensation Act (Act)1
based on an average weekly wage (AWW) of $600. The Board determined that
Claimant’s AWW was $249.22, as reflected in the statement of wages submitted by
Nutrition, Inc. (Employer), and affirmed the WCJ in all other respects. The sole
issue before this Court is whether the Board correctly modified Claimant’s AWW.
After review, we reverse the Board and remand for further proceedings.
I. Background
The relevant facts of this matter are largely undisputed. Claimant worked
approximately four years in a high school cafeteria as a food service employee.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
Certified Record (C.R.), Item No. 20, WCJ Decision, Finding of Fact (F.F.) No. 3.
Claimant worked Monday through Friday, earning $9.94 per hour. F.F. No. 5.
While Claimant’s shift began at 6:00 a.m. each day, the number of hours she worked
varied, with her shift generally ending between 3:30 p.m. and 4:00 p.m. F.F. No. 9.
Claimant did not work when the high school was out of session, and she collected
unemployment benefits during summer breaks. F.F. No. 3. Claimant’s wage rate
increased to $12 per hour when she received a temporary promotion to fill the
position of kitchen manager while the employee who ordinarily worked that job was
on medical leave. F.F. No. 4. Employer expected that the kitchen manager would
return after her medical leave ended and Claimant would return to her original duties.
Id. Claimant worked as kitchen manager for approximately three months before she
sustained a work injury on March 15, 2017, when she slipped and fell while entering
the high school building at the start of her shift. F.F. Nos. 3, 5. Employer issued a
notice of compensation payable on June 9, 2017, acknowledging Claimant’s work
injury, which Employer described as a contusion to Claimant’s upper back area and
right knee. F.F. No. 2. Claimant underwent back surgery on May 12, 2017, which
failed to provide her with pain relief. Id. Claimant tried other treatments, such as
physical therapy and acupuncture, which also failed to alleviate Claimant’s pain
symptoms. Id.
On March 21, 2018, Employer filed a petition to suspend Claimant’s benefits
on the basis that Employer offered a job within Claimant’s medical restrictions.
C.R., Item No. 2. Claimant denied the allegations and filed a review petition,
alleging that Employer incorrectly calculated her wages. Id., Item Nos. 4, 9.
Claimant filed a second review petition seeking to expand the description of her
injury. Id., Item No. 12. Both Claimant and Employer filed petitions for utilization
2
review (UR), seeking a determination regarding the necessity of Claimant’s medical
treatment. Id., Item Nos. 5, 7.
Claimant testified at depositions held on September 10, 2018, and April 18,
2019, and Employer presented the deposition testimony of Cindy Thomas,
Employer’s assistant human relations director, and Melissa Lichtner, Claimant’s
supervisor.2
Claimant advised that she underwent a second surgery on January 15, 2019,
which alleviated some of her pain symptoms. C.R., Item No. 30, Claimant dep.,
4/18/19, at 17, 23. Claimant currently attends physical therapy twice a week, takes
Percocet and a muscle relaxer for pain, and walks with the assistance of a cane. Id.
at 24, 27, 40. Claimant’s treatment providers have not yet released her to return to
work, and she does not believe she could return to her regular job or work a
modified-duty job on a full-time basis. Id. at 25.
During her December 3, 2018 deposition testimony, Thomas acknowledged
that Claimant worked in the position of kitchen manager on the date she sustained
the work injury, and she was paid $12 per hour, an amount not reflected in
Employer’s payroll records. C.R., Item No. 36, Thomas dep., 12/3/18, at 23.
Thomas suggested that Employer’s payroll records did not recognize Claimant’s $12
hourly wage because she only received that pay on a temporary basis. Id. at 38.
Thomas agreed that the employee who previously filled the kitchen manager
position had not returned to work. Id. at 27.
2
Claimant also presented the deposition testimony of her treating physician, Dr. Gene
Salkind, M.D. Employer presented the testimony of Dr. Neil Kahanovitz, who performed an
independent medical examination of Claimant on February 8, 2018. It is not necessary to
summarize their respective testimony, as it does not implicate our resolution of the instant appeal.
3
Lichtner, Employer’s food service director, testified that Employer offered
Claimant a sedentary position following her May 12, 2017 surgery, but that Claimant
only worked two hours before leaving due to pain. C.R., Item No. 37, Lichtner dep.,
12/3/18, at 6, 8, 11. Employer paid Claimant $9.94 per hour for her time. Thomas
dep., Ex. 4. Employer offered Claimant a second sedentary position based on the
restrictions outlined by Employer’s medical expert. Lichtner dep. at 13. Claimant
declined the offer, however, as her treating physician had not released her to work.
Id. at 14. Lichtner confirmed that Claimant worked the kitchen manager position for
approximately three months prior to the March 17, 2017 work injury. Id. at 15, 18.
Had Claimant not been injured, Lichtner conceded that she might have promoted
Claimant to the kitchen manager position on a permanent basis, given that the
original employee never returned. Id. at 19. Because Claimant was “really good at
what she did” in the food service position she previously occupied, however,
Lichtner “probably just would have put [Claimant] back” to that position. Id. at 19,
25. Lichtner stated that while the previous kitchen manager never returned to work,
the position had been filled by a permanent employee. Id. at 16.
At a March 27, 2019 hearing before the WCJ, Claimant’s counsel noted that
a dispute existed regarding Employer’s calculation of Claimant’s AWW and the
accuracy of its statement of wages. C.R., Item No. 27, at 13. Claimant’s counsel
did not raise a concern with the “underlying data,” merely the method by which
Employer calculated Claimant’s AWW. Id. at 14-15. In an April 30, 2019 letter to
the WCJ, Claimant formally objected to admission of Employer’s statement of
wages as “incorrect evidence.” C.R., Item No. 29.
The WCJ circulated her decision on December 17, 2019, crediting the
testimony of Lichtner and Thomas that Claimant earned $12 per hour at the time she
4
was injured. F.F. No. 17. Although Lichtner, Thomas, and Claimant understood
that Claimant’s position as kitchen manager was temporary, the WCJ found that
there was no established deadline as to when that position would no longer be
available. Id. Rather, Claimant would fill that position until the original kitchen
manager returned from medical leave. Id. As of December 3, 2018, the date
Lichtner and Thomas testified, that still had not occurred. Id. The WCJ overruled
Claimant’s objection to the admission of Employer’s statement of wages but found
that it did not reflect Claimant’s $12 hourly wage and, therefore, did not accurately
represent Claimant’s AWW. Id. Accordingly, the WCJ granted Claimant’s review
petition challenging Employer’s calculation of her AWW and directed Employer to
pay Claimant weekly compensation in the amount of $495.50, based on an AWW of
$600 per week from March 15, 2017, and ongoing, and to pay Claimant’s necessary
and related medical expenses.3 WCJ Decision at 18.
Employer appealed to the Board, challenging the WCJ’s calculation of
Claimant’s AWW. Employer argued that the WCJ should have based Claimant’s
AWW on her earnings in the three highest of the four quarters preceding the work
injury, as directed by Section 309(d) of the Act, 77 P.S. § 582. Employer also argued
that the record did not support the WCJ’s finding that Claimant earned $12 per hour
or that her AWW should be $600, as Claimant never worked more than 74.75 hours
during any two-week period.
The Board agreed with Employer as to the WCJ’s calculation of Claimant’s
AWW. C.R., Item No. 23, Board Decision at 8. First, the Board noted that the
record did not support the WCJ’s determination that Claimant worked an average of
3
The WCJ also granted Employer’s UR petition and denied Claimant’s UR petition, after
finding that some of Claimant’s treatment was not reasonable or necessary. F.F. No. 20, WCJ
Decision at 18.
5
50 hours per week. Furthermore, while Claimant might have continued to make $12
per hour after the date of her work injury, a claimant’s AWW is based on wages
earned in the year preceding the work injury, not future wages. The Board reasoned
that Claimant’s receipt of a $12 hourly wage was a temporary state, and not an
accurate expression of Claimant’s economic reality. C.R., Item No. 23, Board
Decision at 7. Therefore, the Board reversed the WCJ and directed that Claimant’s
AWW should be $249.22, as reflected in Employer’s statement of wages. The Board
affirmed the WCJ in all other respects.
Two members of the Board dissented. Citing Hannaberry HVAC v. Workers’
Compensation Appeal Board (Snyder, Jr.), 834 A.2d 524 (Pa. 2003), one Board
member opined that Claimant demonstrated an earning capacity of $12 per hour.
Although he questioned the average number of hours the WCJ estimated Claimant
worked, he would have affirmed the WCJ. This appeal followed.4
II. Discussion
Under Section 309(d) of the Act, a claimant’s AWW shall be calculated by
averaging her total wages for “each of the highest three of the last four consecutive”
13-week periods in the year immediately preceding her injury. Where a claimant
has not been employed for at least three consecutive 13-week periods prior to
sustaining the work injury, Section 309(d.1) of the Act provides that her AWW is
calculated by averaging the total amount earned in any completed 13-week period.
77 P.S. § 582(d.1). The AWW of a claimant who experiences periodic layoffs but
who maintains a continuous employment relationship is governed by Section 309(d).
4
Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether necessary findings of fact are supported by substantial
evidence. Pittsburgh Steelers Sports Inc. v. Workers’ Comp. Appeal Bd. (Trucks), 234 A.3d 442,
444 n.7 (Pa. Cmwlth. 2020).
6
See Reifsnyder v. Workers’ Comp. Appeal Bd. (Dana Corp.), 883 A.2d 537, 548 (Pa.
2005).
In Hannaberry, the precedent cited by one of the dissenting Board members,
our Supreme Court reviewed whether a claimant’s AWW should be based on the
wages he received at the time of his injury or if it should also include the part-time
wages he received prior to commencing full-time employment. The claimant in
Hannaberry worked for his employer on a part-time basis until he graduated from
high school, after which he began working full-time hours. Approximately three
months later, the claimant suffered a work injury after a forklift fell on him,
rendering him a quadriplegic. His employer recognized the claimant’s work injury
but based his AWW on his part- and full-time wages. The claimant argued his
benefit amount should be solely based on his full-time wages at the time he sustained
the work injury. A WCJ agreed and calculated the AWW based on the claimant’s
last quarter of earnings, which totaled more than four times his wages from the next
highest quarter. The employer appealed to the Board, which affirmed. This Court
reversed the Board, noting that Section 309 of the Act, which governed the
calculation of a claimant’s AWW, did not distinguish between part-time and full-
time employment. Although it recognized that including the claimant’s part-time
wages in the calculation of his AWW led to a “grossly unfair” AWW, this Court felt
the language of Section 309 commanded such a result. Hannaberry, 834 A.2d at
527.
In reviewing this Court’s decision, the Supreme Court analyzed the legislative
intent behind Section 309, which had been recently amended by the General
Assembly. In that regard, the Supreme Court concluded that the overall aim and
purpose of Section 309 was to ensure greater accuracy in the computation of an
7
injured employee’s AWW, while also avoiding an award of compensation that
exceeded the wages he would have received had he remained in the workforce. The
various calculation methods set forth in Section 309 were therefore intended to
generate an AWW representing an “accurate and realistic measure of what the
employee could have expected to earn had he not been injured[,]” which ensured he
was neither over- nor under-compensated. Id. at 528. The Supreme Court declined
to assume that the General Assembly intended to have the wages of workers shifting
from part-time to full-time employment underestimated, as such a result would be
contrary to the humanitarian purpose of the Act. As to the claimant, his wages at the
time of injury were not artificially inflated, representing a one-time peak or spike in
pay, but the wages he “regularly earned at the time of injury.” Id. To that end, the
Supreme Court reinstated the WCJ’s order, holding that Section 309(d) did not
control the AWW calculation “in a circumstance where it would lead to a grossly
and demonstrably inaccurate measure of a worker’s [AWW.]” Id. at 534. The net
effect of Hannaberry was to equitably apply Section 309(d.1) of the Act to the
claimant’s circumstances, under which his AWW was based on the total wages
earned for “any completed period of [13] calendar weeks immediately preceding the
injury.” 77 P.S. § 582(d.1).
Claimant relies primarily on the Supreme Court’s decision in Hannaberry in
arguing that the Board erred in reversing the WCJ’s calculation of her AWW.
Because the previous kitchen manager had still not returned to work by December
3, 2018, the date Lichtner and Thomas testified by deposition, Claimant argues that
an AWW based on her $12 hourly wage would more accurately reflect her economic
reality. Moreover, Claimant argued that Employer never established when the
kitchen manager position would no longer be available, which Claimant suggests
8
indicates that Claimant’s promotion may not have been truly temporary. Claimant
submits that her position is bolstered by Lichtner’s testimony that she would have
considered hiring Claimant to fill the kitchen manager position on a permanent basis.
Employer argues that Claimant’s situation does not present any unique
circumstances that would trigger the application of Hannaberry. Claimant’s
position had not permanently changed from food service employee to kitchen
manager, and the fact that Claimant might have continued to work in that position is
not sufficient to support a conclusion that Claimant’s promotion was anything but
temporary. Employer maintains that applying Hannaberry in these circumstances
would result in an artificially heightened AWW. As Claimant worked for Employer
for four years prior to sustaining her work injury, her AWW must be calculated under
Section 309(d) of the Act, which considers the three highest of four quarters
immediately preceding the work injury. Even if Hannaberry applies, Employer
argues that the record does not support a finding that Claimant worked an average
of 10 hours per day, for an AWW of $600.
We agree with Employer that Hannaberry differs factually from the instant
matter because the claimant in Hannaberry was engaged in his regular full-time
position at the time he was injured. Ultimately, Claimant was aware that her position
as kitchen manager was temporary. She may have held that position, with its
increased hourly wage, for another week or month or year. While Claimant’s
increased hourly wage cannot be dismissed as a one-time peak in pay, and the exact
date she would return to her former position as a food service employee was never
defined, Claimant had no reasonable expectation that her increased hourly wage
would continue indefinitely. Any suggestion that Claimant would have been hired
to fill the kitchen manager position on a permanent basis is purely speculative,
9
particularly in light of Lichtner’s testimony that, had Claimant returned to work, she
would most likely have returned Claimant to her previous position as a food service
employee, rather than permanently promote her. Basing Claimant’s AWW on the
hourly wage and position to which she could have returned at any time is not the
“grossly unfair” outcome the Hannaberry Court sought to prevent. Indeed, our
adoption of Claimant’s position would extend the holding in Hannaberry to include
circumstances in which a claimant has benefited from a temporary increase in pay,
effectively rendering that temporary increase permanent for the duration of a
claimant’s period of disability. Such an outcome would thwart the overall aim and
purpose of Section 309 as identified by the Supreme Court in Hannaberry –
accurately computing an injured employee’s AWW while also avoiding an award of
compensation that exceeds the wages she would have received had she remained in
the workforce.
Claimant indisputably worked for Employer for four years, which places the
calculation of her AWW within Section 309(d) of the Act. By its terms, Section
309(d) considers the three highest of four 13-week earning periods immediately
preceding the work injury. The WCJ erred in basing Claimant’s AWW on the $12
hourly rate she received in her temporary position as kitchen manager. The Board
corrected this error when it reversed her decision.
Although we have concluded that the Board did not err when it reversed the
WCJ’s calculation of Claimant’s AWW, there remains a question as to the accuracy
of Employer’s statement of wages. Our review of the record reveals inconsistencies
between Claimant’s earnings, as documented in Employer’s payroll records, and the
10
statement of wages Employer produced.5 As a result, we reverse the Board’s order
to the extent it accepts Employer’s calculation of Claimant’s AWW and remand this
matter to the Board for further remand to the WCJ, who shall recalculate Claimant’s
AWW.
__________________________________
ELLEN CEISLER, Judge
5
Employer appears to have correctly totaled Claimant’s wages for only one of the four 13-
week periods immediately preceding the work injury. C.R., Item No. 36, Item No. 41, Ex. 4. The
second 13-week period, which began on June 15, 2016, and ended on September 14, 2016, includes
earnings for the pay period ending on September 23, 2016. Id. These earnings should have been
included in the following 13-week period of September 14, 2016, through December 13, 2016.
The total wages reported by Employer for the third and fourth periods appear to omit a substantial
portion of Claimant’s earnings – more than $1,500 for the third period and approximately $700 for
the fourth period.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elizabeth Westfield, :
Petitioner :
:
v. : No. 65 C.D. 2021
:
Nutrition, Inc. (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 22nd day of December, 2021, the December 30, 2020 order
of the Workers’ Compensation Appeal Board is hereby REVERSED, and this matter
is REMANDED to the Board for further proceedings consistent with the foregoing
opinion. Jurisdiction is relinquished.
__________________________________
ELLEN CEISLER, Judge