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Moore v. Workers' Compensation Appeal Board11/1/2002
Brian Moore (Claimant) appeals from an order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) grant of Babcock & Wilcox Company's (Employer) suspension petition and reversed the WCJ's grant of Claimant's penalty petition. The WCJ and the Board found that Claimant, while under house arrest, was "incarcerated" and ineligible for benefits under of the Workers' Compensation Act (Act). We affirm.
In July 1994, Claimant began receiving workers' compensation benefits. Since that time, Claimant was convicted of crimes in West Virginia and confined once to jail, once to a rehabilitation facility, and twice to electronically monitored home detention, house arrest. Claimant did not inform Employer of these confinements.
Claimant's house arrest officer testified that in West Virginia an individual on house arrest serves his criminal sentence at his personal residence rather then in a traditional correctional facility. He is required to pay his living expenses and fees covering the cost of the electronic monitoring device. Failure to comply with the rules applicable to house arrest may result in revocation of the house arrest privilege and confinement to a traditional correctional facility. Further, any unauthorized departure by a detainee from his dwelling constitutes criminal escape under the West Virginia crimes code. (Reproduced Record (R.R.) at 310-311R, 347R).
Upon learning of Claimant's 1998 house arrest, Employer unilaterally suspended Claimant's benefits from July 28, 1998 through October 13, 1998. Employer alleged that Claimant was not eligible to receive benefits under Section 306(a.1) of the Act, because he was "incarcerated," a term the Act does not define.
Claimant filed a reinstatement petition on August 5, 1998, in which he argued that suspension of his benefits was not warranted because house arrest with work release does not constitute "incarceration." Claimant simultaneously filed a penalty petition alleging Employer's unilateral suspension of his July through October 1998 benefits violated the Act.
On May 28, 1999, Employer filed a suspension petition. The WCJ consolidated both parties' petitions and held a hearing. The WCJ found Claimant's house arrest constituted incarceration under the Act. The WCJ further concluded that Claimant was entitled to reinstatement of his benefits at the end of his house arrest. However, the WCJ granted Employer credit for benefits received by Claimant during the periods of incarceration he did not report to Employer. The Board affirmed all aspects of the WCJ's decision except the grant of Claimant's penalty petition. Claimant now appeals to this Court.
Claimant, emphasizing his eligibility for work release, argues that his house arrest did not constitute incarceration under the Act. This Court addressed a similar issue in Brinker's International, Inc. v. Workers' Compensation Appeal Bd. (Weissenstein), 721 A.2d 406 (Pa. Cmwlth. 1998), where we held a rehabilitation center detainee was incarcerated despite eligibility for work release. We noted that the General Assembly failed to create any exception to the Act for individuals on work release. The Court further stated:
Although a prisoner on work release is typically granted the privilege of leaving an institution for a limited period of time and is confined for the remainder of the day, we do not believe that the term "incarcerated" in Section 306(a)(2) should be narrowly defined to apply only to prisoners who are confined inside the walls of a jail 100 percent of the time. This is because a prisoner on work release remains in the constructive custody of the Common
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