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Pattison v. Workers' Compensation Appeal Board11/17/2005
Denise Pattison (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed the order of a Workers' Compensation Judge (WCJ) denying a penalty petition filed against Community Care (Employer) pursuant to the provisions of the Pennsylvania Workers' Compensation Act. We reverse in part and affirm in part.
Claimant was injured in an automobile accident on March 12, 1994. At the time of the accident, she was working for Employer as a nurse and had been hired to provide in-home nursing care.
In 1996, WCJ Janet Bell (WCJ I) awarded Claimant total disability benefits at the rate of $493.00 per week for the period from March 12, 1994, through February 14, 1995. The decision instructed the parties to negotiate a supplemental agreement either suspending or modifying benefits effective February 15, 1995. The decision of WCJ I was not appealed.
On August 30, 1999, Employer filed a suspension petition alleging that Claimant had returned to work with no loss of earnings as of February 15, 1995. Claimant denied the allegations and filed a petition for modification alleging that her condition had worsened as of August 16, 1999.
Following a hearing, WCJ Charles Lawton (WCJ II) determined that Employer did not meet its burden in establishing it was entitled to a suspension as of February 15, 1995. However, WCJ II concluded that the record did not contain sufficient information to determine whether there was a wage loss from February 15, 1995, through August 16, 1999. The parties were instructed to resolve the payment of benefits for that period by supplemental agreement. The Claimant was granted reinstatement of total disability benefits as of August 16, 1999.
In 2002, Claimant filed a penalty petition alleging that Employer failed to negotiate in good faith and comply with the order directing the parties to resolve Claimant's entitlement to benefits from February 15, 1995, through August 16, 1999.
In 2003, WCJ Paul Costelnock (WCJ III) denied the penalty petition finding that the average weekly wage and workers' compensation rate had never been correctly calculated. WCJ III then went on to make his own findings of fact and conclusions of law.
WCJ III found that while WCJ I determined that Claimant's hourly rate was $22.50, WCJ I did not make a finding specifying the average weekly wage. WCJ III determined that Claimant's average weekly wage was $500.00. He further determined that there was insufficient information provided to ascertain Claimant's earnings during the disputed period. As such, WCJ III concluded that Claimant failed to establish that Employer violated the Act by failing to pay benefits from February 15, 1995, through August 16, 1999.
Claimant appealed to the Board. Claimant alleged that WCJ III mischaracterized WCJ I's opinion regarding the average weekly wage. She also alleged that the evidence established that she suffered an earnings loss. The Board disagreed and affirmed the opinion of WCJ III.
Claimant now appeals to this Court. Claimant alleges that WCJ III incorrectly recalculated her average weekly wage. Claimant also alleges that it was error to determine that she was not entitled to any benefits for 1996.
WCJ I awarded Claimant total disability benefits at the maximum compensation rate of $493.00 per week, based on undisputed evidence that Claimant earned $22.50 per hour. WCJ I did not make a finding as to the number of hours Claimant was expected to work per week.
Claimant had worked for Employer less than one month prior to the automobile accident. Employer submitted a statement of wages to WCJ III w
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