J. Jackiw v. Soft Pretzel Franchise (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer Jackiw, :
Petitioner :
:
v. : No. 64 C.D. 2022
: Argued: November 16, 2022
Soft Pretzel Franchise (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: August 10, 2023
Jennifer Jackiw (Claimant) has petitioned this Court to review an
adjudication of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of the Workers’ Compensation Judge (WCJ). The WCJ determined that
Claimant’s benefits were to be calculated pursuant to Section 306(a) of the Workers’
Compensation Act (the Act),1 and concluded that the legislature did not intend to
treat a claimant receiving specific loss benefits differently from a claimant receiving
total disability benefits. In reaching her decision, the WCJ relied upon Arnold v.
Workers’ Compensation Appeal Board (Lacour Painting, Inc.), 110 A.3d 1063 (Pa.
Cmwlth. 2015), and Walton v. Cooper Hosiery Co., 409 A.2d 518 (Pa. Cmwlth.
1
Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.
1980). On appeal, Claimant requests that we reconsider Walton. After review, we
affirm.
I. BACKGROUND2
On June 4, 2020, Claimant suffered a crush injury to her right lower
arm, which was amputated. Soft Pretzel Franchise (Employer) issued a Notice of
Temporary Compensation Payable (NTCP). The NTCP provided for indemnity
benefits of $199.30 per week, based upon an average weekly wage (AWW) of
$221.44. The NTCP converted to a Notice of Compensation Payable (NCP).
Subsequently, Claimant filed a modification petition, alleging
concurrent employment, and a penalty petition, alleging a violation of the Act and
averring that her injury had resulted in a specific loss of a forearm pursuant to
Section 306(c)(2), 77 P.S. § 513(2). The parties stipulated to the concurrent
employment, a corrected AWW of $322.05, and a benefit rate for total disability of
$289.85 per week. The parties further stipulated that Claimant’s injury was a
specific loss of the forearm under Section 306(c)(2) of the Act and that she was
entitled to 370 weeks of compensation and a healing period of 20 weeks. However,
the parties could not agree whether the specific loss benefit rate should be calculated
under Section 306(a) or Section 306(c) of the Act and submitted the issue to the
WCJ.3 See 77 P.S. §§ 511, 513.
Following a hearing, the WCJ determined that specific loss benefits
should be calculated pursuant to Section 306(a) because the legislature did not intend
to treat claimants receiving specific loss benefits differently from claimants
2
The recitation of facts is derived from the WCJ’s decision, which is supported by the
record. See WCJ Dec., 6/14/21, at 3-5.
3
Based upon this stipulation, the parties agreed that the penalty petition should be
dismissed.
2
receiving disability benefits. See WCJ Dec. at 4-5 (citing Arnold, 110 A.3d at 1074-
76; Walton, 409 A.2d at 521). Accordingly, the WCJ denied Claimant’s
modification petition. Claimant timely appealed to the Board, which affirmed.
Claimant timely filed a petition for review in this Court.
II. ISSUE4
Claimant presents a single issue for review: whether the Board erred in
affirming the WCJ’s application of Walton and limiting her compensation rate to
90% of her AWW as provided in Section 306(a) of the Act, 77 P.S. § 511.
III. DISCUSSION
A. Background
The Act is “the exclusive forum for redress of injuries in any way
related to the workplace.” See East v. Workers’ Comp. Appeal Bd. (USX
Corp./Clairton), 828 A.2d 1016, 1020 (Pa. 2003). The Act “is remedial in nature
and its purpose is to benefit the workers of this Commonwealth. Thus, the Act is to
be liberally construed to effectuate its humanitarian objectives, and borderline
interpretations are to be construed in the injured party’s favor.” Tooey v. AK Steel
Corp., 81 A.3d 851, 858 (Pa. 2013).
Nevertheless, the Supreme Court has further observed that the Act
balances the interests of employer and employee; it “reflects the historical quid pro
quo between an employer and employee whereby the employer assumes liability
without fault for a work-related injury, but is relieved of the possibility of a larger
damage verdict in a common law action.” Tooey, 81 A.3d at 860. On the other hand,
4
In a workers’ compensation appeal, our review is limited to determining whether an error
of law was committed, whether constitutional rights were violated, and whether necessary findings
of fact are supported by substantial evidence. Bryn Mawr Landscaping Co. v. Workers’ Comp.
Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa. Cmwlth. 2019) (citation omitted).
3
the employee “benefits from the expeditious payment of compensation, but forgoes
recovery of some elements of damages.” See id.The Act provides, in relevant part, that employers are liable for
compensation for personal injury “to . . . each employe, by an injury in the course of
his employment, and such compensation shall be paid in all cases by the employer,
without regard to negligence, according to the schedule contained in [Section 306]
and [Section 307]5 of this article[.]” Section 301(a) of the Act, 77 P.S. § 431.
Section 306(a) provides that in cases of total disability, an employee
may be compensated “sixty-six and two-thirds per centum of [her AWW] beginning
after the seventh day of total disability, and payable for the duration of total
disability[.]” Section 306(a) of the Act, 77 P.S. § 511. This compensation may not
be more than the statewide AWW. See id.6 Further, if the benefit calculated is less
than fifty percent of the statewide AWW, then Section 306(a) defines a remedial
calculation,7 i.e., “the benefit payable shall be . . . ninety per centum of the worker’s
[AWW].” Id.
5
77 P.S. §§ 511, 511.1, 511.2 (repealed), 512, 513, 514, 531, 531.1, 541, 542, 561, 562,
583.
6
Section 306(a) specifically provides that “compensation shall not be more than the
maximum compensation payable as defined in section 105.2.” 77 P.S. § 511; see also Section
105.2 of the Act, added by Act of March 29, 1972, P.L. 159, 77 P.S. § 25.2. The term “maximum
compensation payable” is defined as the statewide AWW. See Section 105.2 of the Act, added by
Act of March 29, 1972 P.L. 159, 77 P.S. § 25.2. The Act further defines statewide AWW as “that
amount which shall be determined annually by the [Department of Labor and Industry
(Department)] for each calendar year on the basis of employment covered by the Pennsylvania
Unemployment Compensation Law for the twelve-month period ending June 30 preceding the
calendar year.” Section 105.1 of the Act, 77 P.S. § 25.1 (footnote omitted).
The record does not contain any findings regarding the statewide AWW at the time of
Claimant’s injury. However, in its brief, Employer notes that “[t]he Statewide average weekly
wage for injuries sustained in calendar year 2020 was $1,081.00. See Employer’s Br. at 10.
Claimant does not dispute this number.
7
The parties have not used this term, nor does it appear in the statutory language; we adopt
it for convenience.
4
Section 306(c) of the Act sets out the schedule of compensation for
disability relating to specific loss, i.e., permanent injuries of certain classes. See
Section 306(c) of the Act, 77 P.S. § 513(1)-(25). For example, an employee who
suffers the loss of a forearm shall receive “sixty-six and two-thirds per centum of
[her AWW] during three hundred seventy weeks.” 77 P.S. § 513(2). This section
also requires that compensation shall not be more than the statewide AWW nor less
than 50 percent thereof but provides no remedial calculation. 77 P.S. § 513(25). In
other words, where the standard calculation for compensation for disability relating
to specific loss results in an amount less than 50 percent of the statewide AWW, the
Act does not require, for example, that the employee receive 90 percent of her
AWW. Compare Section 306(a) of the Act, 77 P.S. § 511, with Section 306(c)(25),
77 P.S. § 513(25).
This difference between Section 306(a) and Section 306(c) was at issue
before the Walton Court. In that case, the claimant had suffered the permanent loss
of his left eye and was entitled to 275 weeks of specific loss benefits plus 10 weeks’
healing period pursuant to Section 306(c) of the Act. See Walton, 409 A.2d at 520.
However, the parties could not agree whether Section 306(a) or Section 306(c)
controlled the correct rate of specific loss benefits. See id. Considering various
amendments to the Act promulgated by the General Assembly in 1974, the Walton
Court determined that the legislature had intended to harmonize these provisions.8
See id. at 520-21 (noting, inter alia, that the changes made to subsection (c)
“conform[ed] precisely to the changes made in subsection (a)”). Accordingly,
because the standard calculation for specific loss benefits resulted in compensation
less than fifty percent of the statewide AWW, the Walton Court applied the remedial
8
In 1974, the General Assembly amended Section 306(c) of the Act. See Section 306(c)
of the Act, Act of December 5, 1974, P.L. 782, No. 263, § 10, effective in 60 days, 77 P.S. § 513.
5
calculation defined in Section 306(a) and awarded the claimant ninety percent of his
wages. Id. at 521.
Subsequently, this Court has upheld the application of the remedial
calculation defined in Section 306(a) to the compensation rate at issue in cases of
specific loss. See, e.g., Allegheny Power Serv. Corp. v. Workers’ Comp. Appeal Bd.
(Cockroft), 954 A.2d 692, 700 n.11 (Pa. Cmwlth. 2008) (en banc), appeal denied,
963 A.2d 472 (Pa. 2009) (“We note that the benefit rate for compensation payable
under all subsections of Section 306(c) is computed in the same manner as for total
disability under section 306(a).”) (emphasis in original); Arnold, 110 A.3d at 1074(noting that the “legislative intent [of the 1974 amendments] appears clear, i.e., to
bring the benefit rate payable under subsection (c) in line with the amounts payable
under subsection (a)” and rejecting disparate treatment under Sections 306(a) and
306(c)); Carney v. Workmen’s Comp. Appeal Bd. (Pittsburgh Paper Stock Co.), 546
A.2d 152, 154 (Pa. Cmwlth. 1988).
B. Claimant’s Arguments
Despite this precedent, Claimant asserts that she is entitled to a novel
interpretation of Section 306(c), which would result in additional compensation for
her specific loss. See Claimant’s Br. at 4-20. Essentially, her arguments boil down
to two principal claims.
First, Claimant contends that the Walton Court erred because it relied
on the “personal” AWW of a claimant in calculating specific loss benefits and that
term appears nowhere in the statutory language of the Act. See id. at 7, 9-16.
Claimant traces the history of this Court’s use of the term to Johnson v. Workmen’s
Compensation Appeal Board, 327 A.2d 222 (Pa. Cmwlth. 1974), superseded by
6
statute as stated in Walton, 409 A.2d 518, which was decided prior to the 1974
amendments. See id.Second, Claimant maintains that the legislature recognized that
different categories of disability required separate schedules of compensation. See
id. at 16-20 (distinguishing, e.g., claims for wage loss occasioned by total disability,
the permanent amputation of a body part, and death). Therefore, discerning no
ambiguity in this statutory language, Claimant contends that she is entitled to rely
on the plain language of the Act and the particular schedule of benefits defined in
Section 306(c). See id. Further, noting the absence of any defined remedial
calculation, Claimant asserts that she is entitled to no less than the minimum defined
in Section 306(c)(25), i.e., no less than 50 percent of the statewide AWW. See id.
at 16-20.9
In response, Employer asserts that the absence of a defined remedial
calculation in Section 306(c)(2) was resolved properly in Walton and the cases that
have since relied upon that precedent. See Employer’s Br. at 12. Further, Employer
explains that “[i]t was the opinion of the Court that it would be improper to allow
for differing calculations which might allow a claimant who earned less than one
half the statewide [AWW] to receive more in benefits than a subsection (a) claimant
similarly situated.” See id. Finally, Employer suggests that the statutory language
“is not clear and free from all ambiguity,” and the interpretation offered by Walton
and its progeny is settled. See Employer’s Br. at 14-15.
9
The difference is substantial. The parties stipulated that Claimant’s AWW was $322.05.
The standard calculation would provide $214.80 in compensation, which is less than half of the
statewide AWW, i.e., $540.50. Pursuant to the plain language of Section 306(c), Claimant would
therefore receive $540.50. However, applying the remedial calculation defined in Section 306(a),
Claimant receives 90 percent of her AWW, i.e., $289.85.
7
C. Analysis
We decline to revisit Walton. Claimant’s burden of persuasion is a
heavy one. “The rule of stare decisis declares that for the sake of certainty, a
conclusion reached in one case should be applied to those which follow, if the facts
are substantially the same, even though the parties may be different.” Pries v.
Workers’ Comp. Appeal Bd. (Verizon Pa.), 903 A.2d 136, 144 (Pa. Cmwlth. 2006).
Under this rule, we are “bound to follow the decisions of our Court unless overruled
by the Supreme Court or where other compelling reasons can be demonstrated.” Id.Claimant’s assertion that the Johnson Court’s use of the word
“personal” had some undefined but adverse effect on her compensation is not
persuasive. In Johnson, the claimant suffered the total loss of his right hand and was
entitled to specific loss benefits pursuant to Section 306(c) of the Act. 327 A.2d at
223. The claimant and his employer disputed the compensation owed. See id. At
the time, Section 306(c) provided that “[t]his compensation shall not be more than
sixty-six and two-thirds per centum of the Statewide [AWW] nor less than sixty-six
and two-thirds per centum of the maximum compensation payable per week for total
disability as provided in subsection (a) of this section, but in no event more than the
employe’s [AWW]. . . .” Id. The Court interpreted the bottom of this range as
variable and dependent on the individual claimant’s AWW, which has always been
used to determine compensation for total disability. Thus, per the Johnson Court,
the “maximum compensation payable for total disability” meant a claimant’s
“personal maximum” compensation payable for total disability. Id.10
10
We need not revisit the Johnson case nor comment on its statutory interpretation. In
Walton, the claimant asserted that the 1974 amendments to the Act were intended “to vitiate the
Johnson holding,” and we agreed. Walton, 409 A.2d at 519.
8
Subsequently in Walton, this Court merely explained the Johnson
Court’s use of the term. See Walton, 409 A.2d at 519-20. The Walton Court then
turned to its evaluation of the 1974 amendments, specifically concluding that the
legislature intended to harmonize the benefit rates payable under Section 306(a) and
Section 306(c). Id. at 521. At no point in its analysis did the Walton Court adopt
the Johnson Court’s interpretation of the Act nor similarly impart a variable range
of benefits based on a claimant’s “personal maximum” compensation payable for
total disability. See generally id.
Additionally, we reject Claimant’s request that we award her
compensation based on her interpretation of the plain language of the statute. As we
have stated repeatedly, in passing the 1974 amendments, it was the intention of the
legislature to harmonize the benefits payable to claimants and eliminate potential
disparity among similarly situated claimants. See id. at 521; see also Arnold, 110
A.3d at 1074; Cockroft, 954 A.2d at 700 n.11; Carney, 546 A.2d at 154. It is a
foundational principle of the workers’ compensation system that a claimant benefits
from the expeditious payment of compensation, as well as the surety of receiving
that payment, in exchange for forgoing recovery of some elements of damages—
namely, higher payments. See Tooey, 81 A.3d at 860. In that sense, the Walton
Court’s decision aligns with the purpose of the Act: treating claimants under both
Section 306(a) and Section 306(c) equally, even where it may mean lower payments.
This Court has indeed addressed and used the Walton interpretations
throughout the years, and despite her tragic injury, Claimant simply has not provided
a compelling reason to set aside 40 years of precedent. See Pries, 903 A.2d at 144.
Claimant has not met her burden of showing that the WCJ or the Board committed
9
an error of law in following it. See Bryn Mawr Landscaping Co., 219 A.3d at 1252
n.5.
IV. CONCLUSION
For the foregoing reasons, we affirm the Board’s order, which affirmed
the decision of the WCJ.
LORI A. DUMAS, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer Jackiw, :
Petitioner :
:
v. : No. 64 C.D. 2022
:
Soft Pretzel Franchise (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 10th day of August, 2023, the order of the Workers’
Compensation Appeal Board, entered January 19, 2022, in the above-captioned
matter is AFFIRMED.
LORI A. DUMAS, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer Jackiw, :
:
Petitioner :
:
v. : No. 64 C.D. 2022
: Argued: November 16, 2022
Soft Pretzel Franchise (Workers’ :
Compensation Appeal Board), :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE WOJCIK FILED: August 10, 2023
Respectfully, I dissent. As the majority properly instructs, there are
sound reasons supporting the longstanding requirement of adherence to precedent.
Although I appreciate the majority’s faithful adherence to the principle of stare
decisis, the principle is not immutable. In matters of statutory construction,
departure from stare decisis is warranted where the Court has “distorted the clear
intention of the legislative enactment and by that erroneous interpretation permitted
the policy of that legislation to be effectively frustrated.” Mayhugh v. Coon,
331 A.2d 452, 456 (Pa. 1975); see In re Paulmier, 937 A.2d 364, 371 (Pa. 2007), as
clarified (Dec. 28, 2007) (“the doctrine of stare decisis was never intended to be
used as a principle to perpetuate erroneous rules of law”). Such is the case here. For
the reasons that follow, I believe Walton v. Cooper Hosiery Co., 409 A.2d 518(Pa. Cmwlth. 1980), was wrongly decided and its interpretation of Section 306(c) of
the Workers’ Compensation Act (Act),1 was plainly erroneous.
Section 306(a)(1) of the Act establishes a schedule of compensation for
total disability and provides:
For total disability, sixty-six and two-thirds per centum of
the wages of the injured employe as defined in section 309
[of the Act, 77 P.S. §582,] beginning after the seventh day
of total disability, and payable for the duration of total
disability, but the compensation shall not be more than the
maximum compensation payable as defined in section
105.2 [of the Act, 77 P.S. §25.2, added by the Act of
March 29, 1972, P.L. 159]. Nothing in this clause shall
require payment of compensation after disability shall
cease. If the benefit so calculated is less than fifty per
centum of the Statewide average weekly wage, then the
benefit payable shall be the lower of fifty per centum of
the Statewide average weekly wage or ninety per centum
of the worker’s average weekly wage.
77 P.S. §511(1).
Section 306(c) of the Act sets forth a schedule of compensation for
disability from permanent injuries of certain classes specified, namely specific and
permanent loss. 77 P.S. §513(c). Section 306(c)(2) sets the rate of compensation
for the loss of a forearm at “sixty-six and two-thirds per centum of wages during
three hundred seventy weeks.” 77 P.S. §513(3). Section 306(c)(25) provides, in
relevant part:
In addition to the payments hereinbefore provided for
permanent injuries of the classes specified, any period of
disability necessary and required as a healing period shall
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §511(c).
MHW-2
be compensated in accordance with the provisions of this
subsection. The healing period shall end (I) when the
claimant returns to employment without impairment in
earnings, or (II) on the last day of the period specified in
the following table, whichever is the earlier:
***
For the loss of a forearm, twenty weeks.
***
Compensation under paragraphs (1) through (24) of this
clause shall not be more than the maximum compensation
payable nor less than fifty per centum of the maximum
compensation payable per week for total disability as
provided in subsection (a) of this section, but in no event
more than the Statewide average weekly wage.
77 P.S. §513(c)(25) (emphasis added). In other words, the upper limit is the
maximum compensation payable and the minimum limit is 50% of that, provided
that neither amount is more than the Statewide average weekly wage. See id.
The plain language of Section 306(c)(25) suggests that compensation
for the scheduled specific losses is governed by a different, more generous benefit
rate schedule from that provided in Section 306(a). Despite this plain language, the
Walton Court concluded that the intent of the legislature was not to create any
different benefit calculation. Walton, 490 A.2d at 521. The Court noted that the
General Assembly substantially amended Section 306(c) of the Act in 1974 (the
1974 amendment)2 in response to Johnson v. Workmen’s Compensation Appeal
2
Act of December 5, 1974, P.L. 782, No. 263.
MHW-3
Board, 327 A.2d 222, 223-24 (Pa. Cmwlth. 1974).3 See Walton, 409 A.2d at 520
n.2. The Court opined, “[i]n our view, the legislative intent appears clear, i.e., to
bring the benefit rate payable under subsection (c) in line with the amounts payable
under subsection (a) . . . .” Walton, 409 A.2d at 521. “Most significantly, the
amendments to [subsection] (c) eliminated the proscription against an employe[]
receiving more in benefits than his average weekly wage.” Id. The Court reasoned
that it would be improper to allow for differing calculations that might allow a
claimant who earned less than one-half the Statewide average weekly wage to
receive more in benefits than a subsection (a) claimant similarly situated. Id. The
Court expressly rejected the claimant’s argument that newly enacted Section 306(c)
“should be read independently of subsection (a) for the purpose of calculating
Minimum benefits, so that he should receive not less than one-half of the Statewide
average weekly wage.” Id. at 521 n.6. The Court opined that “to adopt [the]
claimant’s position would result in subsection (c) claimants who earn less than one-
half the Statewide average weekly wage receiving more in benefits than subsection
(a) claimants similarly situated.” Id. at 521. The Court determined the legislature
did not intend such a result. Thus, the Court concluded that the benefit rate in the
3
Johnson involved an award for specific loss under the prior version of Section 306(c) of
the Act. See Johnson, 327 A.2d at 223. Former Section 306(c) mandated that for the loss of a
hand, a claimant “shall be exclusively compensated in the amount of two-thirds of wages as long
as that amount is not more than two-thirds of the Statewide average weekly wage (two-thirds of
$141.00, or $94.00), nor is less than two-thirds of the maximum compensation payable per week
for total disability as provided in subsection (a).” Id. (internal quotation and citation omitted). The
Court determined that “[t]his latter minimum amount of award must be determined by [a]
claimant’s Personal maximum compensation payable for total disability,” which was two-thirds of
$47.00, or $31.33. Id. Since the statutory calculation of two-thirds of the claimant’s wages (two-
thirds of $64.00, or $42.67) fell within the statutory parameters, the Court awarded that amount to
the claimant. Id.
MHW-4
case of a specific loss under Section 306(c) must be computed for all purposes in the
same manner as for total disability under Section 306(a). Id.
The problem with the Walton decision is that the Court did not follow
the fundamental tenants of statutory construction in reaching its conclusion. “The
object of all statutory interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.” Section 1921(a) of the Statutory
Construction Act of 1972, 1 Pa. C.S. §1921(a). It is well settled that “[t]he best
indicator of the General Assembly’s intent is the plain language of the statute.”
Commonwealth by Shapiro v. Golden Gate National Senior Care LLC, 194 A.3d
1010, 1034 (Pa. 2018); Commonwealth v. Gilmour Manufacturing Co., 822 A.2d
676, 679 (Pa. 2003). As our Supreme Court has consistently opined:
The intention and meaning of the Legislature must
primarily be determined from the language of the statute
itself . . . . When the language of a statute is plain and
unambiguous and conveys a clear and definite meaning,
there is no occasion for resorting to the rules of statutory
interpretation and construction; the statute must be given
its plain and obvious meaning. This principle is to be
adhered to notwithstanding the fact that the court may be
convinced by extraneous circumstances that the legislature
intended to enact something very different from that which
it did enact.
Commonwealth v. Shafer, 202 A.2d 308, 312 (Pa. 1964); accord A.S. v.
Pennsylvania State Police, 143 A.3d 896, 903 (Pa. 2016). “When the words of a
statute are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa. C.S. §1921(b); accord Golden Gate,
194 A.3d at 1034; see Commonwealth v. Pope, 317 A.2d 887, 889 (Pa. 1974) (“A
court may not alter, under the guise of ‘construction,’ the express language and intent
MHW-5
of the Legislature.”). Further, “[e]very statute shall be construed, if possible, to give
effect to all its provisions.” 1 Pa. C.S. §1921(a).
“It is only when statutory text is determined to be ambiguous that we
may go beyond the text and look to other considerations to discern legislative intent.”
A.S., 143 A.3d at 903; accord 1 Pa. C.S. §1921(c).
Where statutory or regulatory language is ambiguous, this
Court may resolve the ambiguity by considering, inter alia,
the following: the occasion and necessity for the statute or
regulation; the circumstances under which it was enacted;
the mischief to be remedied; the object to be attained; the
former law, if any, including other statutes or regulations
upon the same or similar subjects; the consequences of a
particular interpretation; and administrative
interpretations of such statute. Freedom Med. Supply, Inc.
v. State Farm Fire & Cas. Co., [] 131 A.3d 977, 984 ([Pa.]
2016), citing 1 Pa. C.S. § 1921(c).
A.S., 143 A.3d at 903.
The plain language of Section 306(c)(25) evinces the General
Assembly’s intent to treat workers who suffered permanent loss of a body part
differently than workers with a total disability. Such an interpretation gives meaning
to both Section 306(a) and 306(c), whereas the Walton analysis eliminated the
distinction between wage loss under Section 306(a) and scheduled loss under
Section 306(c), thereby rendering Section 306(c)(25) essentially meaningless. There
is no ambiguity in the statutory language to justify the Walton’s Court disregard of
the plain language in pursuit of its spirit. Even if we look beyond the plain language
and considered other considerations of legislative intent, it is equally plausible, if
not more so, that the General Assembly intended to compensate claimants who
suffer a specific loss more than claimants who suffered total disability without the
MHW-6
loss of a body part. Claimants under Section 306(a) and claimants under Section
306(c) are not similarly situated. Though both may be totally disabled, claimants
eligible for benefits under Section 306(c) suffered a permanent specific loss, not just
a disability. As the Pennsylvania Association of Justice (Amicus),4 which filed an
amicus brief in support of Petitioner Jennifer Jackiw’s (Claimant) position,
persuasively notes:
One can hardly argue that an injured worker who suffers
the loss of a body part has not suffered a more grievous
injury than an injured worker whose injury can be
expected to resolve over time allowing the injured worker
to return to either his preinjury employment or some other
form of employment. A specific loss is permanent. In
accord therewith, it makes perfect sense that the
Legislature would enact a different scheme of
compensation, and a more generous scheme of
compensation, for an individual who suffers a specific
loss.
Amicus Brief at 11.
Following Walton, the General Assembly, in Act 44 of 1993,
eliminated a provision that formed part of the Walton Court’s rationale to remove
the incentive of injured workers receiving more in compensation than they would by
actually working. This incentive does not exist for Section 306(c) workers who
receive payment for their lost body part, whether they work or not, further
undermining the legitimacy of Walton.
The majority also relies on Arnold v. Workers’ Compensation Appeal
Board (Lacour Painting, Inc.), 110 A.3d 1063 (Pa. Cmwlth. 2015), to support the
4
Amicus, formerly the Pennsylvania Trial Lawyers Association, is a non-profit
organization with a membership of 2,000 men and women of the trial bar of the Commonwealth
of Pennsylvania. Amicus promotes the rights of individual citizens by advocating the unfettered
right to trial by jury, full and just compensation for innocent victims, and the maintenance of a free
and independent judiciary.
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continued validity of Walton and application of Section 306(a) rates to Section
306(c) injuries. In Arnold, we stated:
Our holding in Fields [v. Workers’ Compensation Appeal
Board (City of Philadelphia), 104 A.3d 79 (Pa. Cmwlth.
2014),] that the claimant was not permitted to elect to
receive multiple, concurrent specific loss awards arising
out of one work incident is consistent with our decision in
Walton. . . . In Walton, we analyzed the 1974 amendments
to Section 306(a) and Section 306(c) of the Act and held
that the “legislative intent [of these amendments] appears
clear, i.e., to bring the benefit rate payable under
subsection (c) in line with the amounts payable under
subsection (a).” Walton, 409 A.2d at 521. We concluded
that contrary to the arguments of both parties the
legislature could not have intended a “disparate treatment”
in setting the rate of weekly compensation under Section
306(a) or Section 306(c) and instead the amendments were
intended “to expand and equalize the weekly benefits
under both subsection (a) and (c).” Id. at 520-21. We
therefore calculated the specific loss benefits for the
claimant, who suffered a loss of use of his right eye, in
accordance with Section 306(a). Id. at 521; see also
Allegheny Power Service Corp. v. Workers’
Compensation Appeal Board (Cockroft), 954 A.2d 692,
700 n.11 (Pa. Cmwlth. 2008) (en banc) (“We note that the
benefit rate for compensation payable under all
subsections of Section 306(c) is computed in the same
manner as for total disability under section 306(a).”)
(emphasis in original); Carney v. Workmen’s
Compensation Appeal Board (Pittsburgh Paper Stock
Co.), . . . 546 A.2d 152, 154 ([Pa. Cmwlth.] 1988).
110 A.3d at 1074 (footnote omitted). We concluded that “the Act does not envision
such preferential treatment in the computation of specific loss benefit rates but
instead requires that multiple specific loss benefit awards related to one work
incident be paid consecutively with aggregated terms and the specific loss benefit
rate set according to Section 306(a).” Id.MHW-8
However, neither Arnold nor the cases cited therein explain the
aberration in Walton regarding application of Section 306(a) rates to Section 306(c)
injuries. Arnold dealt with a claimant seeking payment of multiple specific loss
benefits concurrently. Application of the compensation rate was not at issue.
In sum, there can be little doubt that Claimant in this case, having
suffered a work-related loss of her forearm, has suffered a more grievous injury than
a claimant who has not lost a body part. Based on the plain language of Section
306(c), the General Assembly clearly intended to compensate claimants with
specific loss more generously than other claimants. In Walton, this Court distorted
and frustrated the clear intention of the General Assembly by disregarding the plain
language of the Act.5
5
A scholar on workers’ compensation has expressed similar dissatisfaction with the Walton
decision:
A provision of Section 306(c)(25) seems to suggest that
compensation for the scheduled specific losses is governed by a
different benefit rate schedule from that provided in Section 306(a).
In a somewhat unsatisfactory case, however, the Commonwealth
Court held that the intent of the legislature was not to create any
different benefit calculation. The court ruled that the benefit rate in
the case of a specific loss is computed for all purposes in the same
manner as for total disability.
David B. Torrey and Andrew E. Greenberg, West’s Pennsylvania Practice, Workers’
Compensation Law and Practice §7:15 (4th ed. 2021) (footnotes omitted). In an earlier edition of
this same treatise, the author wrote:
In the trenches of everyday practice, benefits are paid for “specific
loss” . . . at a compensation rate identical to that for [temporary total
disability (TTD)]. This is so despite the fact that one provision of
section 306(c) states:
Compensation under paragraphs (1) through (24) of
(Footnote continued on next page…)
MHW-9
For these reasons, I believe that Walton was wrongly decided and that
this case represents the rare exception to stare decisis, which permits this Court to
this clause shall not be more than the maximum
compensation payable nor less than fifty per centum
of the maximum compensation payable per week for
total disability as provided in subsection (a) of this
section, but in no event more than the Statewide
average weekly wage.
This writer (Torrey) receives an inquiry roughly once a year that has
its genesis in this provision of the [Act]. How can the everyday
practice deviate so dramatically from what appears to be an
unequivocal statute suggesting that an artificial floor on specific loss
payments exists.
The answer lies in the court precedent Walton . . . . There
the court remarked, among other things, that the 1974 amendments
to this section were driven by a “clear” intent “to bring the benefit
rate payable under subsection (c) in line with the amounts payable
under subsection (a).” The claimant in Walton had an average
weekly wage of $85.26. The Statewide Average Weekly Wage
(SAWW) for 1976 was $187.00. Claimant, relying on the statute
quoted above, insisted that his benefit rate should be at the 50% floor
or $93.50. The [WCJ] agreed, but the Board reversed (ordering a
2/3 payment instead). [This Court] affirmed—though it corrected
the Board and held that the actual percentage should be 90% of the
claimant’s average weekly wage, or $76.73.
Among other things, the court stated that the “legislative intent [of
certain 1974 amendments to the statute] appears clear, i.e., to bring
the benefit rate payable under subsection (c) in line with the amounts
payable under subsection (a).” Claimant received, accordingly, not
the floor amount that he desired, but $76.73 per week (90% of his
AWW).
David B. Torrey and Andrew E. Greenberg, West’s Pennsylvania Practice, Workers’
Compensation Law and Practice §7:12 (3d ed. 2008) (footnotes omitted).
MHW-10
overrule it and correct its improper interpretation of Section 306(c) of the Act.
MICHAEL H. WOJCIK, Judge
President Judge Cohn Jubelirer joins in this dissenting opinion.
Judge Wallace joins in this dissenting opinion.
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