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Verizon Pennsylvania11/18/2005
Verizon Pennsylvania, Inc. petitions for review of the order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of the Workers' Compensation Judge (WCJ) denying Verizon's modification petition. Verizon contends that it presented sufficient evidence proving that Joseph Gatta earned more in wages and workers' compensation benefits than fellow employees in similar employment thus entitling Verizon to a reduction in its benefit liability pursuant to Section 306(b) of the Workers' Compensation Act, as amended, 77 P.S. § 512. Verizon further argues that the WCJ erred in requiring proof of the company's economic stress and in requiring proof as to the amount of individual employee wages rather than relying upon an average of wages of current employees performing Gatta's time of injury job.
On October 23, 1997, Joseph Gatta sustained an injury while working for Bell Atlantic, Verizon's predecessor, as a splicing technician. Pursuant to a Notice of Compensation Payable (NCP), Gatta received temporary total disability benefits until March of 1998 and, thereafter, received partial disability benefits.
The NCP did not state an average weekly wage. However, during subsequent litigation, culminating in the grant of Gatta's review petition and the denial of Verizon's termination petition, the WCJ determined that Gatta had earned a pre-injury average weekly wage of $2,093.37. In December of 2001, Verizon petitioned for reduction in its liability for partial disability benefits, as of November 1, 2001, pursuant to the provision in Section 306(b) limiting a claimant's entitlement to partial disability benefits. Section 306(b) of the Act generally establishes that for partial disability caused by compensable injury an employer shall pay sixty-six and two-thirds per centum of the difference between the wages of the injured employee, as defined in Section 309, and the earning power of the employee thereafter. In pertinent part, Section 306(b) states:
n no instance shall an employe receiving compensation under this section receive more in compensation and wages combined than the current wages of a fellow employe in employment similar to that in which the injured employe was engaged at the time of the injury.
77 P.S. § 512(1).
At the hearing before the WCJ, Verizon's attorney explained the grounds for the company's petition, stating that when Gatta was injured his average weekly wage included a significant amount of overtime, which the company no longer permits. Consequently, average weekly wages for those employees performing Gatta's pre-injury job have decreased so that Gatta receives more in wages for a forty-hour week plus partial disability than non-disabled technicians. In support of its petition, Verizon submitted the depositions of Edward Boudman, a local manager of the Malvern service facility from 2000 until February 2003, and Carol Olsavicky, director of customer operations for southeastern Pennsylvania. Boudman testified that, in the summer of 2001, the company directed a reduction in overtime generally and, in any event, Gatta, who was working under physical restrictions, was not offered overtime pursuant to a company policy against overtime work for persons subject to restrictions. Olsavicky testified that, in late 2001, the company implemented a plan to reduce overtime, limiting it to two hours per week per employee. Olsavicky explained that, under a profit-sharing plan established in the collective bargaining agreement, splicing technicians received the maximum profit-sharing distribution during the period roughly coinciding with the reduction in overtime. However, Olsavicky did not provide information regarding the company
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