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Brimmer v. Workers' Compensation Appeal Board3/7/2000
ARGUED: December 7, 1999
Andrew Brimmer (Claimant) petitions for review of the March 11, 1999 order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a workers' compensation judge (WCJ) granting the review petition filed by North American Refractories (Employer). We reverse.
Claimant suffered a work-related injury on July 7, 1993 and Employer accepted liability for the injury by way of a notice of compensation payable (NCP) issued August 13, 1993. Claimant received $475 per week, based on an average weekly wage of $1021.70. In calculating Claimant's average weekly wage, Employer included a lump sum distribution of vacation pay, in the amount of $2864.21, in one of the four thirteen-week periods used for that computation. See Section 309 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง582.
On April 7, 1997, Employer filed a review petition seeking to recalculate Claimant's average weekly wage by spreading the amount of the vacation pay over the year in which it was earned. In support of its petition, Employer presented the testimony of its personnel manager and another employee concerning the manner in which Claimant's average weekly wage had been calculated. Their testimony, accepted as credible by the WCJ, established that Employer determined the amount of an employee's vacation pay by multiplying the employee's gross earnings from the prior year by a percentage based on the employee's seniority. An employee's vacation pay is tendered in one lump sum, usually in January or February of each year, at the employee's request.
Relying on Eljer Indus. v. Workmen's Compensation Appeal Board (Johnson), 670 A.2d 203 (Pa. Cmwlth. 1996) and Exide Corp. v. Workmen's Compensation Appeal Board (Kamenas), 653 A.2d 50 (Pa. Cmwlth. 1994), the WCJ granted Employer's petition, concluding that Claimant's vacation pay should have been prorated over the entire year in determining his average weekly wage. Claimant appealed to the Board, arguing that the WCJ erred in retroactively applying the law. The Board affirmed, opining that these decisions did not change the law, but merely clarified it.
On appeal to this Court, Claimant argues that the Board erred in concluding that Employer met its burden of proving that a material mistake of fact or law was made at the time the NCP was executed. Claimant argues that Employer's calculation of his average weekly wage was consistent with this Court's holding in Boro of Midland v. Workmen's Compensation Appeal Board (Granito), 561 A.2d 1332 (Pa. Cmwlth. 1989), and that the NCP cannot be modified in reliance on subsequent decisions.
In Boro of Midland, the claimant was paid compensation pursuant to an NCP in which the employer had prorated the decedent employee's vacation pay over the entire year when calculating the average weekly wage. The claimant filed a review petition, arguing that the vacation pay should have been included in the fourth quarter wages preceding the decedent's injury. The referee granted the petition, finding that the wage transcript submitted by the employer clearly reflected that the vacation pay was included in the decedent's fourth quarter wages, that the payment was made almost a year prior to the decedent's death, and that various tax and social security deductions were made at that time. The Board affirmed and the employer appealed.
In a case of first impression, the Boro of Midland court noted that the Board had treated the vacation pay just as the employer had treated it in its wage transcript. The court further observed that Section 309(d) of the Act contains no provision for the prorating of wages paid
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