Anderson v. WCAB (Pa. Cmwlth. 181 C.D. 2014, filed March 10, 2015)

March 10, 2015

Written by our expert brief writer, Attorney Susan Nanes


Claimant was a newly hired (two weeks) truck driver for Employer in December 2007; he was told he would earn $1100-1200 per week based on a percentage of Employer’s charges for “loads” he drove for them (Employer testified that Claimant was told he’d earn $900-1000 per week).  He made his first “run” on 12/20/27 and his second the following day.  On his third run, on 12/27/07, to Massachusetts, Claimant started to unload the truck, caught his leg between the back of a pallet jack and the “skid,” and suffered a fractured ankle.  He filed his CP claim on 2/11/08.


WCJ initially determined that Claimant’s AWW was $405, based on actual earnings of $270 maximum for three “runs,” divided by the two weeks that Claimant worked for Employer; from the AWW, the WCJ determined Claimant should receive $364.50/month, which was affirmed by WCAB.  Fund sought suspension as of 1/13/11, asserting that by then, Claimant’s earning power was equal to or greater than his pre-injury AWW.  WCJ determined after hearings that at that point, Claimant’s AWW was $440 per week, $35 above his original AWW of $405, and that suspension was warranted.  WCAB affirmed.


Cmwlth Ct: Reverse suspension & remand for modification of benefits based on corrected (higher) AWW.  Standard method of calculating AWW does not fit, so AWW is to be determined using an alternative method which will advance the overall humanitarian purpose of the Act, per Hannaberry (Pa. 2003) & Burkhart Refractory (Pa. Cmwlth. 2006), which ensure that new and unconventionally or sporadically compensated workers will be treated fairly in WC context.  Here, Claimant was technically employed for two weeks, but only earned money for the three runs he made in a single week; Claimant should not be penalized by a lower AWW when Employer did not have work available for him during the entire time he worked for them.  WCJ correctly calculated $810 for the one week that Employer had work available that Claimant performed, but WCJ should not have divided by two since there was no available work for one week.  Correct AWW is $810.  Other WCJ conclusions and determinations (including current earning power of $440 per week) upheld, but suspension no longer warranted since earning power does not meet or exceed proper AWW.

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