TTH eNotes: Workers’ Compensation – August 2018

SIGNIFICANT PENNSYLVANIA CASE SUMMARIES

City of Pittsburgh v. W.C.A.B. (Flaherty), No 29 C.D. 2018 (Pa. Cmwlth. 2018) (June 1, 2018)

By: Anthony J. Gabriel, Esquire

· Volunteer Firefighter Presumption of Causation
· Statutory Notice

Background

Claimant, an active firefighter of 16 years for Employer, noticed a lump on her breast in August of 2004. Claimant was then diagnosed with breast cancer following a mammogram and underwent a mastectomy approximately one month later. Claimant’s last date of employment was September 9, 2004 as she was unable to continue working as a result of her surgery.

In the summer of 2011, Claimant received a letter of distribution from her Union informing her of Pennsylvania’s new firefighter presumption law. The Union Letter led Claimant to question whether there was a connection between her job and her cancer. Claimant then filed a claim petition, which first provided notice to Employer of her allegations, on September 23, 2011. Several months thereafter, Claimant was first informed of the causal link between her cancer and her occupation when she received a medical report from her oncologist.

On appeal to the Commonwealth Court, the only issue was whether Claimant filed her claim petition within 21 days of knowing that her cancer was possibly work-related, thereby entitling her to compensation from the date of disability. In other words, the issue before the Court was not whether Claimant was entitled to benefits, but rather the date from which she was entitled to receive those benefits. Please note that the date of the exact date and the contents of the Union Letter were not made part of the record.

Analysis

The Commonwealth Court held that Claimant did not obtain actual medical confirmation of the relationship between her cancer and her work until after the filing of her claim petition. The Court noted that Act 46, which introduced the new presumption of causation for volunteer firefighters, does not impute actual knowledge on an employer thereby satisfying a claimant’s notice obligations. Similarly, Act 46 does not impute knowledge to a claimant that his or her cancer was caused by work exposure and not due to other risk factors.

The Commonwealth Court further determined that Claimant exercised reasonable diligence in determining the existence of any possible relationship between her breast cancer and her firefighting duties as the Union Letter “awakened in her, at once, the idea of exploring whether or not her occupational exposure resulted in her breast cancer . . . And so she did, with 120 days.”

Holding

The Commonwealth Court held that Claimant provided timely notice of her work-related injury as her receipt of the Union Letter did not commence the 21-day notice period and she acted with reasonable diligence in filing her claim petition shortly thereafter.

E. Hempfield Twp. v. W.C.A.B. (Stahl), No. 1058 C.D. 2017 (June 1, 2018)

On the same date, the Commonwealth Court decided E. Hempfield Twp. v. W.C.A.B. (Stahl), No. 1058 C.D. 2017 (June 1, 2018), an appeal in which this author represented the Employer.

In Stahl, the Claimant, a volunteer firefighter, read an article in July of 2011 discussing Pennsylvania’s passage of law regarding cancer in firefighters and how it may affect their rights under the Act. Claimant then entered into a fee agreement with his counsel on august 5, 2012, received a medical confirmation of the correlation between his cancer and his firefighting duties on September 16, 2014 and, only then, filed a claim petition in November of 2014. Claimant’s claim petition was the first notice provided to the Employer.

On appeal, the Commonwealth Court held that the WCJ and Board erred in determining that the notice period can only begin to run when a doctor advises a claimant of the work-relatedness of an injury. Rather, the Court remanded the litigation for a determination of whether Claimant made a reasonable effort to discover the cause of his injury under the facts and circumstances presented. Such a determination is necessary because, if it is determined that Claimant should have previously known of the work-relatedness of his injury through the exercise of reasonable diligence, his claim petition should be denied as he failed to comply with the statutory notice requirements.

These two cases illustrate that notice, especially in a situation involving an occupational disease, is a factually driven analysis. Moreover, care should be taken to determine what efforts a claimant has made to determine the cause of his or her condition because, if a claimant does not proceed with reasonable diligence, an untimely notice argument can be raised.
For more information regarding these decisions, please contact Anthony J. Gabriel, Esquire at (717) 441-3957 or agabriel@tthlaw.com

LifeQuest Nursing Center v. WCAB (Tisdale), No. 1250 C.D. 2017 (July 19, 2018)

By: Justin D. Beck, Esquire

Acknowledging existing conflict between prior precedent and more-recent Bureau Regulations, Commonwealth Court has held that where benefits are paid pursuant to a Notice of Temporary Compensation Payable (“NTCP”), an Amended NTCP is the proper filing for which changes in compensation are to be made, rather than a Supplemental Agreement.

Background

In LifeQuest, Claimant alleged a left leg sprain after tripping over a patient’s wheelchair at work. Employer issued an NTCP in order to investigate the reported work-relatedness of the injury. Sometime later, but still within the 90-day window of temporary compensation payable, Employer filed two Supplemental Agreements with the Bureau as a result of Claimant’s returning to [modified] work. Shortly thereafter, Claimant stopped working entirely, and the employer filed both a Notice Stopping Temporary Compensation Payable (“NSTCP”) and a Notice of Compensation Denial (“NCD”).

Claimant filed Claim and Penalty Petitions, alleging that Employer had violated the Workers’ Compensation Act by misusing Supplemental Agreements, and therefore improperly discontinued her partial disability benefits. The WCJ granted the Claim Petition, in part, finding that Employer was not bound by the Supplemental Agreements, as the NSTCP properly stopped benefits.

Claimant appealed to the WCAB, which reversed, finding that the Supplemental Agreements issued by Employer constituted an acceptance of the claim, and remanding to the WCJ for a determination of penalties.

Legal Analysis

The Commonwealth Court reversed the WCAB. The court held that conflict existed between the controlling precedent of Gereyes v. WCAB (New Knight, Inc.) and Section 121.7a(c) of the Bureau Regulations; to wit, Gereyes had held that an employer violated the Act where unilaterally reducing the amount of compensation paid pursuant to an NTCP when a claimant returns to work. However, the court acknowledged that Section 121.7a(c) of the Bureau Regulations now requires an employer to file an Amended NTCP with the Bureau during the 90-day temporary compensation payable period to modify an NTCP. Nevertheless, the court noted, employers across the Commonwealth have continued to file Supplemental Agreements in such scenarios in an effort to comply with Gereyes.

The court determined that the Supplemental Agreements in the matter were filed merely to document the change in Claimant’s benefits based upon a return to work, and were not admissions of liability. Accordingly, Employer was not bound by the injury descriptions contained therein, nor was the claim deemed accepted.

The court was quick to note that the employer had not violated the Act by executing Supplemental Agreements. However, the court emphasized that, moving forward, when modifying an NTCP for any reason other than accepting liability, the proper filing is an Amended NTCP. Notwithstanding Gereyes, documenting a change in the rate of compensation during the 90-day temporary compensation period without accepting liability does not require the employee’s agreement. In the event the claimant disputes the terms of the Amended NTCP, the proper recourse remains a Petition to Review.

Takeaway

Where compensation is paid pursuant to an NTCP, subsequent changes in benefits should be effectuated by the issuance of an Amended NTCP, rather than Supplemental Agreement. By doing so, the carrier comports with the provisions of Section 121.7a(c) of the Bureau Regulations. However, where Supplemental Agreements are so utilized for such purposes, the same do not constitute acceptance of liability if an NSTCP and NCD are subsequently filed within the 90-day period of temporary compensation.

Questions regarding this case may be directed to Justin Beck at 412-926-1441 or jbeck@tthlaw.com.

Anthony Nahas v. WCAB (Synergistic Partners, Inc.), No. 726 C.D. 2017, (July 26, 2018) (unreported decision)

By: Mary G. March, Esquire

The Commonwealth Court of Pennsylvania held that there is no requirement that the details of a job offer be in writing and that a modification or suspension of benefits may be based on an oral offer made in the course of litigation through testimony.

Background

Claimant sustained a work injury that was accepted by Employer as a knee and foot sprain. Claimant returned to work and suffered an aggravation of his work injury. Claimant did not return to work after the aggravation occurred. Employer offered claimant sedentary duty work as a mail clerk at the Lawrence facility located 40 miles from where claimant previously worked (Monessen) and where he lived. The WCJ denied Employer’s Petition to Suspend Benefits based on this job offer, finding that Employer did not meet its burden of proving that it had offered work to Claimant within his restrictions due to the distance claimant would have to travel and because Claimant’s ability to drive was restricted.

One year later, Employer again filed a Petition to Suspend Benefits alleging Claimant refused work within in his restrictions. The job offered was again the mail clerk position. It was a sedentary position at the same preinjury wages, but was still located in Lawrence, 40 miles from Claimant’s home and his prior office. During the course of the litigation, the Employer’s human resources coordinator testified before the WCJ on May 4, 2015. During this testimony the witness stated that the same sedentary duty position was now available in Monessen, Claimant’s prior work location close to his home and that Employer was offering this position to Claimant. Employer testified that the Monessen facility was on a public bus lien and the Employer would be willing to pick Claimant up from the nearest bus stop. Further, Employer’s insurer’s claims representative testified that the insurance carrier would pay for the cost of modifying a vehicle owned by Claimant so it could be operated with hand controls only.

Claimant had testified earlier in the proceedings (February, 2014) that he was unable to accept the job in Lawrence due to his inability to drive and the distance involved. He stated in his testimony that he had no objection to the Monessen location as it was only a mile from his home. After the offer of the position at the Monessen facility, Claimant testified in June, 2015. At this time, Claimant stated he could not take this position due to hills and stairs involved between his home and the bus stop, and that several of his vehicles were not operational.

The WCJ granted the Suspension Petition finding that the work offered was within the restrictions set forth by Claimant’s physicians. The WCJ founds Employer’s human resources coordinator and claims representative credible and rejected Claimant’s testimony that he could not travel to Employer’s Monessen facility.

Analysis

On appeal, the Commonwealth Court instructed that, “A position within the claimant’s physical limitations is not an available job and cannot support the modification or suspension of benefits if there is no means of transportation for the claimant to get to the workplace.” PA Department of Corrections/SCI-Greensburg v. WCAB (Zvara), 948 A.2d. 244, 247-248 (Pa. Cmwlth. 2008). Claimant argued on appeal that the WCJ could not find that Employer offered available work on May 4, 2015 (the date of the human resources coordinator’s testimony), because the Monessen job offer was not fully set forth in writing at that time and the offer to modify one of Claimant’s vehicles with hand controls was not also made in a formal written document. In rejecting this argument, the Commonwealth Court noted that a written job description had been perviously offered to Claimant for the mail clerk position he was offered. The Court stated, There is no requirement that all details concerning a job offer be in witting. Modification or suspension of benefits may be based on an oral offer made in the course of litigation through testimony.” See, Crawford County Care Center v. WCAB (Daly), 649 A.2d 203, 204-06 (Pa. Cmwlth. 1994); Devlin Electric, Inc. v. WCAB (Shurina), (Pa. Cmwlth., No. 837 C.D. 2013, filed 9/24/14), slip op. at 20.

Take Away

This case is a win for employers who keep trying to find work within a claimant’s restrictions. Keep offering work when new positions open up that may be more favorable to your desired outcome. The offer to modify the car controls was creative and helped Employer defeat Claimant’s objection to being able to drive. Finally, the lack of a written documents spelling out these offers was not required. One caveat: the Job Description had been previously given to Claimant and this job description had been approved by Claimant’s treating providers. Without a job description having been provided the outcome may have been different.

Questions regarding this case may be directed to Mary G. March at 610-332-7017 or mmarch@tthlaw.com.

Hernandez v. WCAB (F&P Holding Co.), No. 1820 C.D. 2017 (July 19, 2018)

By: Joseph J. Shields, Esquire

The Commonwealth Court affirmed the decision of the WCJ, which terminated Claimant’s benefits despite the WCJ finding Claimant’s testimony that he was not recovered from his work injury, needed work restrictions and additional treatment and still experienced pain to be credible.

Background

On August 12, 2011, Claimant sustained a work injury described as a thoracic sprain. At the time of the injury, Claimant was performing modified duty resulting from an earlier 2006 work-related lumbar spine injury. In September 2013, Claimant presented Employer with work restrictions and was thereafter laid off. On October 1, 2013, Claimant filed a Reinstatement Petition alleging a decrease in earning power following his 2011 injury. The Employer filed an answer admitting that it laid off Claimant because it could not accommodate his work restrictions, but denied that the restrictions were related to the work injury. Claimant was thereafter seen by Dr. Fras for an IME on March 14, 2014 and Employer filed a Termination Petition based upon the results of the IME. On February 5, 2016, the WCJ granted both Petitions, finding that Claimant was totally disabled from September 30, 2013 through March 14, 2014, but recovered thereafter.

Claimant appealed and the WCAB reversed the WCJ’s decision granting reinstatement. The WCAB found that Claimant’s inability to work as of September 30, 2013 was, at least in part, due to an unrelated lumbar spine condition. The WCAB vacated the grant of the Termination Petition and remanded for the WCJ to consider the testimony of Claimant’s medical expert, Donna Kulp (D.C.). On remand, the WCJ found Claimant’s live testimony credible while also finding the testimony of Dr. Fras more credible than that of Dr. Kulp. The WCJ again granted both Petitions and terminated Claimant’s benefits as of March 14, 2014. The WCJ also awarded litigation costs to the Claimant. Both parties appealed the WCJ’s decision. On November 28, 2017, the WCAB affirmed the WCJ’s decision granting the Termination Petition, but reversed the WCJ’s decision granting the Reinstatement Petition and award of litigation costs, as the WCAB’s April 25, 2016 Order only remanded the Termination Petition to the WCJ, and the Reinstatement Petition and litigation costs were not properly before the WCJ. Claimant appealed, arguing that the WCB erred in affirming the WCJ’s decision granting the Termination Petition because the WCJ found Claimant’s live testimony credible.

Legal Analysis

The Commonwealth Court affirmed the decisions of the WCJ and WCAB.
In a termination petition, the employer’s burden is met when an employer’s medical expert unequivocally testifies that it is his or her opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions, and that there are no objective medical findings that either substantiate any ongoing complaints of pain or connect them to a work injury. The Court noted that testimony regarding the existence of Claimant’s complaints of pain, in and of itself, does not require the WCJ to find for a claimant, as a contrary result would forever preclude the termination of benefits by merely complaining of continuing pain. In this case, the Employer’s medical expert, Dr. Fras, testified that Claimant’s physical examination was objectively normal and that Claimant’s imaging studies were modest, degenerative in nature and unrelated to a thoracic spine sprain. Claimant argued that the WCJ’s decision was inconsistent in that the WCJ credited the testimony of Dr. Fras regarding Claimant’s full recovery while also crediting Claimant’s testimony that he continues to have pain and restrictions attributable to his work injury.

The Court cited to the case of Pella Corp. v. WCAB (Wertz), No. 2144 C.D. 2008. The Court recognized that Pella was an unreported opinion, which can be cited for its persuasive value, but not as binding precedent pursuant to the Court’s Internal Operating Procedures. The Court found Pella persuasive in this case because of factual similarities to the case at bar. In Pella, the employer’s expert testified that claimant’s ongoing complaints resulted from preexisting degenerative conditions, and not from the work injury. Claimant testified that while she had prior unrelated surgery, her current complaints and restrictions were due to her current work injury. The WCJ found both claimant and the employer’s expert credible and terminated claimant’s benefits. The Commonwealth Court ultimately affirmed the decision of the WCJ, finding that substantial evidence supported the WCJ’s decision in granting the termination petition, as the WCJ had the sole authority, as the factfinder, to weigh the conflicting evidence and make a determination. The Court found the facts in Pella to be very similar to the facts at bar, and again affirmed the decision of the WCJ to terminate Claimant’s benefits, as the WCJ had the sole authority to weigh the evidence and reach the conclusion to terminate Claimant’s benefits.

Take Away

The main take away from this case is that the Commonwealth Court explicitly recognized that it will consider unreported opinions when deciding cases if the facts of the unreported cases are similar to those of the case at bar. Per the Court’s Internal Operating Procedures, the Court does not have to consider unreported opinions at all, as those cases are not binding precedent like reported opinions. However, this case makes clear that unreported opinions with similar fact patterns should be cited and discussed when appealing any decisions, as the Court will consider those opinions if factually similar.

Any questions regarding this case can be directed to Joseph J. Shields at 570-820-0240 or at jshields@tthlaw.com.

SIGNIFICANT MARYLAND CASE SUMMARIES

Justin Stine v. Montgomery County, Maryland, No. 578, September Term 2017, filed June 1, 2018. Opinion by Nazarian, J.

By: Toi Mason, Esquire

Background

Claimant sustained and accidental injury (foot) while working as a volunteer EMT for Montgomery County. At the time of the injury, Claimant was a student studying nursing and had approximately two years before he would earn his degree. He was also a part time EMT for a private ambulance company during the school year. Claimant filed a claim for lost wages. The Commission held Claimant’s average weekly wage (AWW) to be $64.64, the average wages he earned in the fourteen weeks preceding his injuries.

Claimant appealed to the Circuit Court for Montgomery County and requested a jury trial. Meanwhile, Claimant retained a VOC expert to support his argument that under LE 9-602(a)(3) his AWW should be based on what he likely would earn after finishing his nursing school and working full-time as an EMT/nurse. The County argued that LE 9-602(a) does not apply and that LE 9-602(g) addresses the computation of AWW of volunteer EMT’s applies instead. On the day of the trial, the court granted the County’s motion in limine to exclude the testimony of the VOC expert and the court’s motion to strike the jury and remanded the case to the Commission.

Analysis

When computing the AWW of a volunteer EMT, the Circuit Court is not required to apply LE 9-602(a)(3) which allows for consideration of wages that a WC claimant may expect to earn in the future, given the claimant’s age and experience but they may rely on LE 9-602(g) which governs the AWW of a volunteer EMT. When calculating the AWW, the COMAR regulation does not purport to restrict the Commission in any manner from utilizing a different time period, than fourteen weeks if the Commission deems it appropriate to do so. (Wagstaff). Lastly, with regards to a jury trial, judicial review in workers compensation cases can follow one of two “modalities”, an unadorned administrative appeal or an essential trial de novo. Claimant did not lose his right to a jury trial merely because the court excluded his expert’s testimony. With regards to the VOC expert’s testimony, testimony concerning wages the volunteer EMT might expect to earn in the future after earning nursing degree was not relevant to calculating the AWW of a volunteer EMT which was already governed by 9-602(g).

Holding

The circuit court erred in entering an order affirming the decision of the WCC when claimant exercised his right to jury trial pursuant to LE 9-745(d). The circuit court did not err in affirming the circuit court’s exclusion of testimony from the VOC expert’s testimony. The court erred in holding that COMAR 14.09.03.06 compelled the Commission to calculate the AWW based on average wages earned during a fourteen-week period.

Practice tip

When handling a claim involving a volunteer EMT, remember LE 9-602(g) governs computation of AWW, not LE 9-602(a)(3).

Any questions regarding this case can be directed to Toi Mason at (410) 653-0460 ext 8722 or at tmason@tthlaw.com

Claudette Norman-Bradford v. Baltimore County Public Schools, et al., No 2536, September Term 2016 filed April 30, 2018. Opinion by Nazarian, J.

By: Toi Mason, Esq.

Background

Claimant suffered an accidental injury while working of the Board of Education of Baltimore County, suffering injures to her back, right ankle, hip, knee, and wrist. Her pre-accident medical history included neck, head, and back injuries as well as fibromyalgia and hypertension. She filed a claim with the Commission and was awarded benefits. She also applied for accidental disability retirement benefits from the Maryland State Retirement and Pension System, but was granted an ordinary disability retirement instead. The Employer sought to offset Claimant’s ordinary disability retirement benefits against her WC benefits. The Commission determined the Employer was not entitled to an offset and the Employer petitioned for judicial review in the Circuit Court for Baltimore County. After a hearing, the circuit court granted the Employers motion and reversed the Commission’s decision.

Analysis

Claimant argued that the circuit court erred in finding that LE 9-610, not the State Personnel and Pension Article(SP) governed the Employer’s right to an offset and that even if LE 9-610 applies, the court erred in finding that benefits were similar. The court reasoned that in light of the 2004 amendment of SP 29-118, a retiree employed by the county board of education who receives ordinary disability retired benefits through that employer remains subject to the offset provision of LE 9-610, not SP 29-118. The Court also reasoned that both of the benefits Claimant received were for the same injuries and physical incapacity, and were thus similar, triggering LE 9-610. Additionally, when the Claimant suffers an injury involved a preexisting condition that is triggered or exacerbated by an accidental injury, LE 9-610 offset still applies even if the Maryland State Retirement Pension System and WC Commission awarded benefits for the same injury but found different causes for that injury.

Holding

The Commission erred in denying Claimant’s request for offset as the benefit Claimant received were similar, applying LE 9-610 not SP 29-118.

Practice Tips

When a claimant is receiving WC benefits in addition to retirement benefits for the same physical incapacity and injury, LE 9-610 applies with regard to an offset.

Any questions regarding this case can be directed to Toi Mason at (410) 653-0460 ext 8722 or at tmason@tthlaw.com

Rina Calvo v. Montgomery County, Maryland, No. 48, September Term 2017, filed May 21, 2018. Opinion by Adkins, K.

By: Toi Mason, Esquire

Background

Claimant was employed by Montgomery County as a bus driver for approximately 20 years. She received a letter notifying her that she had been scheduled to attend an “important mandatory training” involving customer service on a Saturday in Gaithersburg. The training was from 8:00 am to 4:30 pm. Claimant did not have to wear her uniform , but she was required to attend the training annually. Claimant was rear-ended by another car while at a traffic light on the way to the training. Claimant filed a claim. Claimant testified that she believed if she missed the training she might be suspended or prevented from going back to full duty. The Commission found Claimant sustained an accidental injury arising out of and in the course of employment. The County sought judicial review in the Circuit Court for Montgomery County and requested a jury trial. The County argued the going and coming rule prohibited recovery. Claimant argued she was a traveling employee, therefore the going and coming rule applied. In the alternate, Claimant argued the special mission exception permitted recovery. The circuit court found that the going and coming rule precluded recovery, Claimant was not a traveling employee, and ruled in favor of the County. The COSA affirmed.

Analysis

With regards to cases on review, the question of whether an injury arose out of or in the course of employment is a mixed question of law and fact. If the Commission’s decision involves considering conflicting evidence over facts or deduction of inferences from such evidence, the Commission’s decision is presumed correct. If, however, the undisputed facts do not permit a conclusion or any permissible inference supporting the Commission’s award, then it is a question of law. In order for an injury to be compensable, it must arise out of and in the course of employment. The Court ruled that Claimant’s injuries arose out of her employment because but for her employment placing Claimant in that position, she would not have been injured. Claimant’s injury occurring in the course of her employment depended on the time, place, and circumstances of her injury relative to her employment. Under the going and coming rule, injuries sustained while going to or coming from work are not ordinarily in the course of employment.

The traveling employee rule applies when an employee is injured on premises where the employee was staying to carry out the employer’s business.

The special mission exception applies when the trouble and time of the making the journey, or special inconvenience, hazard, or urgency of making it in the particular circumstances is sufficiently substantial to be an integral part of the service itself. The multi-factor test used to determine whether a journey is sufficiently special to fall within the exception includes: the relative regularity or unusualness of the particular journey in the context of the employee’s normal duties; the relative onerousness of the journey compared with the task to be performed; and the suddenness of the call to work, or whether the journey was made under an element of urgency. The court reasoned that although Claimant was required to attend the training as a condition of her employment, it was not regular in relation to her employment duties because it took place on a day she did not usually work and at a location different than her usual work site. That the task was part of Claimant’s employment was not dispositive because the special mission has applied in cases when employees had to occasionally come to work during their off hours. The Court concluded that it would not have been unreasonable for a jury to find that Claimant’s travel was sufficiently unusual.

The factors for assessing onerousness include all of the facts and circumstances of the journey, including: the burden of the journey in comparison with the task to be completed, suddenness, urgency, the length and time of the journey, and whether the employee was required to work on a day she was not normally to work. The court reasoned that although Claimant was to spend a full day in training after her trip, she worked on a day she did not normally work, which weighed in her favor.

Holding

The circuit court did not err in ruling that the going and coming rule applied, rather than the traveling employee doctrine. However, the court erred in ruling that the special mission exception to the going and coming rule did not apply. Additionally, the Commission’s decision, on review, is presumed to be prima facie correct, except with questions of law.

Practice tip

When you have a Claimant who was injured while traveling to or from work, be careful to assess where the injury took place and the facts and circumstance under which the Claimant was injured to properly determine which exception applies.

Any questions regarding this case can be directed to Toi Mason at (410) 653-0460 ext 8722 or at tmason@tthlaw.com

Richard Beavers Construction, Inc., et al. v. Dexter Wagstaff, No. 1977, September Term 2016, filed March 1, 2018. Opinion by Arthur, J.

By: Toi Mason

Background

Claimant began working for Employer in the middle of February 2013 making $18.95 per hour. He was hired for the purpose of working “full time” meaning “40 hours a week.” Claimant needed to be available to work eight hours a day for five days a week, unless it was raining or snowing. Claimant would not earn pay when he could not work due to poor weather. During the following six weeks Claimant missed work due to rain and snow, working only 16.75 hours per week, making his gross earnings $317.41. In April, 2013, Claimant suffered an accidental injury at the construction site when he fell 18 feet through a roof, landing face-first on the warehouse floor. Claimant suffered extensive traumatic injuries, requiring surgery and long-term therapy. When Claimant filed a claim, he reported a gross weekly wage of $758.00, the amount he would have earned at 40 hours a week at a rate of $18.95 per hour. The Employer submitted actual wage earnings during the six weeks prior to the injury and the Commission initially determine Claimant’s AWW to be $317.38.

At the hearing, Claimant testified that he was hired to do full time work, meaning 40 hours a week and that inclement weather was the sole reason that he did not actually work 40 hours after being hired. The owner of the Employer testified that Claimant was hired to work on a full-time basis. After the hearing, the Commission determined Claimant’s AWW to be $758.00. The Employer filed a petition for judicial review in the Circuit Court for Talbot County. Employer moved for summary judgment based on the testimony of Claimant and on the record of the proceedings in the Commission. The Employer argued that as a matter of law, Claimant’s AWW needed to be calculated by actual hours worked and their motion was denied. Both parties submitted a joint motion that there were no factual disputes, so they each presented oral arguments and written motions and the circuit court affirmed the Commission. The Employer appealed.

Analysis

With regards to calculating the AWW, the Commission is not required to calculate the employee’s AWW based on the actual earnings before the accident where: the employee was injured only a short time after bing hired to work 40 hours per week,; the employee worked substantially less than 40 hours per week before the accident; the circumstances called into question whether the actual hours worked in that time period were representative of his normal working hours; and the parties presented only two options for determining the AWW.

LE 9-602(a)(1) states “the average weekly wage of a covered employee shall be computed by determining the average of the weekly wages of the covered employee … when the covered employee is working full time; and … at the time of . the accidental injury.” The Employer argued that that statute means that the AWW must be based on the actual weeks worked prior to the accident. The Court disagreed. The Court reasoned that the key phrase, “when the covered employee is working full time,” is unclear for an employee who is hired for full-time work, but who actually does not work full time before the accident. The Court further reiterated that the AWW is based on what the employee would earn from the employer where working under a specific contract of hire existing between the employer and employee. They reasoned there is a distinction in what the employee “would earn” versus what the employee “earned” before the injury. The Employer also argued that the Claimant received an impermissible “windfall through his injury; meaning, he received more due to his injury than he would have received had he not been injured. The Court disagreed because it depended on premise that the six-week earning history truly represented Claimant’s normal working hours.

The Employer then argued that COMAR 14.09.03.06 establishes the determination of AWW, which states “ the employer/insurer shall file a wage statement containing information about the average wage earned by the claimant during the 14 weeks before the accident.” The Employer argued that the AWW should be based on actual wages fro the 14 weeks prior to an accident; however, the regulation only requires that the employer shall file a wage statement containing certain information, it does not require a certain method. The next section obligates all parties to produce evidence to determine the AWW in order for the Commission to make a determination. The regulation permits parties to contest whether the 14-week wage statement accurately represents what the employee would earn from the employer under contact in existence at the time of the injury. The regulation does not restrict the Commission from using a different time period if the Commission deems it appropriate to do so, the Commission may decide the most appropriate basis for its calculation on a case-by-case basis. The Commission’s decision based upon Claimant’s testimony that he was hire for full-time work at a rate of $18.75 sufficiently supported the calculation of Claimant’s AWW. It was reasonable for the Commission to conclude that rain and snow three out of every five work days was abnormal. Since there were only two options for the Commission to choose, it was not unreasonable for the Commission to conclude that $758.00 was a better approximation.

The Employer also argued that variations in working hors are an ordinary incident of employment, such as reasonable reductions in hours, should be a factor in the AWW computation. The Employer’s failed to provide the Commission with evidence of what an ordinary work week for a similarly situated employee was, so the Commission had no other information to base its decision on, other than the two options that were presented.

Holding

The court did not err in calculating the AWW based upon the number of hours Claimant was hired to work, as opposed to the number of hours actually worked.

Practice tip

When a Claimant was hired for a full-time position and as a result of contract with employer, they are limited in the hours they work, present evidence to the Commission to support your argument that Claimant is not entitled to the benefit of full-time wages.

Any questions regarding this case can be directed to Toi Mason at (410) 653-0460 ext 8722 or at tmason@tthlaw.com