Tioga Orchards, LLC and Nationwide Ins. Co. v. WCAB (Gaffney)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Toigo Orchards, LLC and :
Nationwide Insurance Company, :
Petitioners :
:
v. : No. 722 C.D. 2016
: Argued: December 12, 2016
Workers’ Compensation Appeal :
Board (Gaffney), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: March 13, 2017
Toigo Orchards, LLC, and its insurer, Nationwide Insurance Company
(together, Employer), petition for review from the April 13, 2016 Order of the
Workers’ Compensation Appeal Board (Board), modifying in part, and affirming
otherwise, the Workers’ Compensation Judge’s (WCJ) July 14, 2015 Final
Decision and Order that granted Earl Gaffney (Claimant) specific loss benefits for
the loss of vision in his left eye. Because Claimant had been retired in Florida
prior to being hired as a tractor driver to move bins during the apple-picking
season, and returned to retirement in Florida after his injury, there are questions
about whether he was a seasonal employee, for purposes of determining the correct
average weekly wage (AWW), and whether he should be awarded a healing
period. On appeal, Employer argues that the Board erred by: (1) reversing the
WCJ’s determination that Claimant was a seasonal employee within the meaning
of Section 309(e) of the Workers’ Compensation Act (Act),1 77 P.S. § 582(e); (2)
reversing and modifying the WCJ’s calculation of Claimant’s AWW as a seasonal
employee pursuant to Section 309(e) of the Act; and (3) reversing the WCJ’s
decision to omit an award for a healing period pursuant to Section 306(c)(25) of
the Act, 77 P.S. § 513(25). In addition, if the Court concludes that the WCJ
properly classified Claimant as a seasonal employee, Claimant has asked whether
his AWW should be calculated using the expected earnings provision of Section
309(d.2) of the Act, 77 P.S. § 582(d.2),2 rather than using Section 309(e), because
he had worked less than 13 weeks for Employer at the time of his injury. Upon
review, we affirm in part and reverse in part.
I. BACKGROUND
A. Proceedings before the WCJ
On October 8, 2013, Claimant sustained a work-related injury while working
for Employer. (Claim Petition, R.R. at 2a.) At the time of the injury, Claimant
worked for Employer at the rate of $9.00 per hour and was hired to drive a tractor
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(e).
2
Section 309(d.2) of the Act, added by the Act of June 24, 1996, P.L. 350, as amended,
77 P.S. § 582(d.2), provides, as follows:
Wherever in this article the term “wages” is used, it shall be construed to mean
the average weekly wages of the employe, ascertained as follows:
***
(d.2) If the employe has worked less than a complete period of thirteen calendar
weeks and does not have fixed weekly wages, the average weekly wage shall be
the hourly wage rate multiplied by the number of hours the employe was expected
to work per week under the terms of employment.
2
and move bins for apple pickers in the orchard. (Id. at 4a.) Employer issued a
Notice of Temporary Compensation Payable to Claimant on October 29, 2013, and
filed a Corrected Statement of Wages with the Bureau of Workers’ Compensation
on December 2, 2013, providing a wage calculation based on seasonal
employment. (R.R. at 34a-35a.) The resulting AWW was determined to be $35.10
with a compensation rate of $31.59 per week. (Id. at 35a.) On January 3, 2014,
Employer issued a Medical Only Notice of Compensation Payable to Claimant for
an injury described as traumatic iridocyclitis with cystoid macular edema of the
left eye. (Board Op. at 1.) Claimant filed a Claim Petition on July 1, 2014,
seeking specific loss benefits for the loss of vision in his left eye, indicating that
his injury caused him to stop working, and listing Claimant’s job title as “Laborer.”
(R.R. at 3a-4a.) Employer filed an Answer denying all material allegations of
Claimant’s Petition. (Id. at 8a.)
A pre-trial hearing on the Claim Petition was held before the WCJ on July
29, 2014. (Hr’g Tr., July 29, 2014, R.R. at 38a.) A second hearing was held on
December 10, 2014, at which the WCJ bifurcated the proceeding, to first decide
Claimant’s status and whether Claimant’s AWW should be calculated as a seasonal
employee, and second the medical issues. (Hr’g Tr., Dec. 10, 2014, R.R. at 52a,
122a.) Claimant’s Counsel appeared, and Claimant testified via telephone.
Employer appeared and offered the testimony of Jeremiah Calloway, a Federal
Crew Chief. A number of documents were entered into evidence, including
Claimant’s paystubs and Mr. Calloway’s Farm Labor Contractor Certificate of
Registration.
3
Claimant testified as follows.3 He started working for Employer at the
beginning of September 2013 as a tractor driver and had previously worked for
Employer about 30 years ago as an apple picker. He did not pick fruit for
Employer, but moved bins for the apple pickers as they moved from tree to tree,
and he did no other work on the farm. Claimant earned $9.00 per hour, his normal
working hours were 7:00 a.m. to 5:00 p.m., and he worked five days a week,
Monday through Friday. He was hired only for the apple season and was not
promised more work by Mr. Calloway, a lifelong friend, who hired him. His eye
injury occurred when a tree limb knocked his glasses off and scratched his eye as
he was getting off of a tractor, he did not return to work afterwards, and he
remained in Pennsylvania for approximately two weeks after his injury occurred
before returning to Florida. He received Social Security retirement benefits in
Florida for about six years prior to starting employment with Employer, and
currently receives those benefits; his last job was six and a half years ago working
at a chemical plant making fertilizer. Claimant stopped receiving Social Security
retirement benefits while he worked for Employer, and when he returned to his
home in Florida, he began receiving them again. There was another tractor driver
who worked for Employer year-round.
Mr. Calloway testified as follows.4 He was a Federal Crew Chief for
Employer, registered under the Migrant and Seasonal Agricultural Worker
Protection Act,5 whose purpose he explained is to bring people from one state to
the next to harvest crops, though he does not transport them. He hired Claimant,
3
Claimant’s testimony can be found on pages 60a-97a of the Reproduced Record.
4
Mr. Calloway’s testimony can be found on pages 97a-121a of the Reproduced Record.
5
29 U.S.C. §§ 1801-1872.
4
with whom he went to school, for the temporary job of driving a tractor around the
orchard, not to pick apples. Claimant’s job included hauling and moving people
and bins around the orchard. Apple season lasts from September to November,
and he did not promise Claimant work after the apple harvest was over. He and the
other workers, including Claimant, did not work in the rain. Most of the time,
Claimant did work 10-11 hours a day. Mr. Calloway also explained the duties of
Employer’s year-round tractor driver, which include spraying, taking care of the
farm, computer duties, and, during the apple harvest, hauling apples out of the
orchard. Mr. Calloway lived in Florida and hired crews only for Employer; when
the harvest was over, he returned to Florida.
In an initial interlocutory order memorandum, the WCJ credited both
Claimant’s and Mr. Calloway’s testimony and found that the job Claimant was
hired to perform “was as an extra tractor driver during the apple harvest,” and that
the duration of employment was directly associated with the length of the apple
picking season. (WCJ Interlocutory Order Memorandum at 4, Findings of Fact
(FOF) ¶¶ 6-10.) The WCJ concluded that Claimant’s employment as an “extra
tractor driver during the apple harvest” was exclusively seasonal employment.
(Id.) The WCJ further concluded that the Corrected Statement of Wages used the
correct calculation. (Id., Conclusion of Law (COL) ¶ 1.) Thus, the WCJ granted
the Claim Petition and ordered that Claimant’s AWW be calculated based on the
seasonal employment calculation used in the Corrected Statement of Wages.
(WCJ Interlocutory Order.)
Upon request that a final decision and order be rendered, the WCJ
subsequently issued a final order making the same findings of fact as the
interlocutory order memorandum. (WCJ Final Decision and Order, FOF ¶¶ 12-
5
13.) The WCJ concluded that Claimant met his burden of establishing by
sufficient, competent, and credible evidence that he sustained a work injury to his
left eye on October 8, 2013, resulting in the total loss of use of his left eye for all
intents and purposes. (Id., COL ¶ 1.) Accordingly, the WCJ awarded Claimant
specific loss benefits of 275 weeks at $31.59 per week based upon an AWW of
$35.10, for a total of $8,687.25, plus litigation costs to Claimant. (WCJ Final
Order.)
B. Proceedings before the Board
Claimant appealed the WCJ’s Final Decision and Order to the Board,
arguing first that the WCJ erred in finding that he was a seasonal worker. The
Board concluded “that the WCJ erred by imposing too narrow a construction upon
Claimant’s employment,” and that the inquiry should have focused “on the nature
of the work, not the period during which the employer operates,” pursuant to
Froehly v. T.M. Harton Co., 139 A. 727 (Pa. 1927). (Board Op. at 6.) The Board
characterized Claimant’s employment as “itinerant agricultural labor,” and, while it
was intended to be temporary during the orchard’s period of operation, short-term
employment is not synonymous with seasonal occupation. (Id. at 7.) Accordingly,
the Board held that Claimant’s AWW had to be calculated using a different
subsection of Section 309 of the Act.
Claimant next argued that Section 309(d.2) should be used to calculate his
AWW because he worked less than 13 weeks and did not have fixed weekly
wages, which would result in an AWW of $450.00 (50 hours multiplied by $9.00
per hour). The Board rejected this argument, concluding that a calculation under
Section 309(d.2) does not achieve a fair assessment of Claimant’s pre-injury
6
earnings, which are known. (Id. at 7-9.) The Board instead, relying on Burkhart
Refractory Installation v. Workers’ Compensation Appeal Board (Christ), 896
A.2d 9, 13 (Pa. Cmwlth. 2006), used an alternative calculation, which divided
Claimant’s total gross earnings by the weeks worked, which yielded an AWW of
$351.00 ($1,755.00 divided by 5 weeks) and a benefit rate of $315.90.
The Board also concluded that the WCJ erred in not awarding benefits for a
10-week healing period pursuant to Section 306(c)(25) of the Act, 77 P.S. §
513(25), and that Claimant was entitled to the 10-week healing period provided for
under the Act. (Board Op. at 9-10.) Accordingly, the Board modified the WCJ’s
order to reflect an award of 285 weeks of benefits at the rate of $315.90 per week,
and otherwise affirmed the WCJ’s order. (Board Order, Apr. 13, 2016.) Employer
then petitioned this Court for review.6
C. Proceedings before this Court
On June 8, 2016, Employer filed an Application for Supersedeas on Appeal
(Application), requesting that this Court grant a supersedeas as to the Board’s April
13, 2016 Decision and Order, which modified the WCJ’s award of benefits to 285
weeks of benefits at the rate of $315.90 per week. Claimant filed an Answer to the
Application. After argument, a Memorandum Opinion and Order was filed on July
27, 2016. The opinion noted that “Employer properly filed the Application with
6
“This Court’s review of an order of the Board is limited to determining whether the
necessary findings of fact are supported by substantial evidence, whether Board procedures were
violated, whether constitutional rights were violated[,] or [whether] an error of law was
committed.” Cytemp Specialty Steel v. Workers’ Comp. Appeal Bd. (Crisman), 39 A.3d 1028,
1033 n.6 (Pa. Cmwlth. 2012). When reviewing questions of law, our review is plenary. Land
O’Lakes, Inc. v. Workers’ Comp. Appeal Bd. (Todd), 942 A.2d 933, 936 n.3 (Pa. Cmwlth.
2008).
7
this Court to preserve its right to seek reimbursement from the Supersedeas Fund.”
Toigo Orchards, LLC v. Workers’ Comp. Appeal Bd. (Gaffney) (Pa. Cmwlth., No.
722 C.D. 2016, filed July 27, 2016), slip op. at 5 and n.2 (citing Mark v. Workers’
Comp. Appeal Bd. (McCurdy), 894 A.2d 229, 233 (Pa. Cmwlth. 2006) (setting
forth requirements an employer or insurer must meet in order to seek
reimbursement from the Supersedeas Fund)). However, we denied Employer’s
Application because it had already paid all specific loss benefits to Claimant, and,
as such, there was no irreparable injury to Employer. Id., slip op. at 5-6; see also
Pa. Pub. Util. Comm’n v. Process Gas Consumers Grp., 467 A.2d 805, 808-09 (Pa.
1983) (setting forth the criteria an employer must meet to receive a supersedeas,
one of which requires that irreparable injury must occur if the supersedeas is
denied).
On July 12, 2016, Claimant filed a Designation of Additional Issue on
Appeal (Designation), requesting that the Court consider whether his AWW should
“have been calculated using the expected earnings provision of Section 309(d.2) of
the . . . Act . . . where he had worked less than 13 weeks for . . . Employer at the
time of his injury[.]” (Designation at 2.) Claimant alleges that although he raised
the issue to both the WCJ and the Board, neither addressed it. (Id. at 1.) Employer
filed an Application to Preclude and/or Quash Respondent’s Designation of
Additional Issue on Appeal (Application to Preclude and/or Quash) on July 19,
2016, arguing that Claimant’s additional issue “is an independent request that the
Board’s Order calculating [Claimant’s] AWW pursuant to [the calculation in]
Bur[k]hart, as $351[.00 per week], be reversed such that the AWW is calculated
pursuant to Section 309(d.2) to instead reflect an AWW of $450[.00 per week],
and that [his] benefits be modified accordingly.” (Application to Preclude and/or
8
Quash ¶ 10 (emphasis in original).) Employer argues that Claimant waived the
issue pursuant to Rules 1513 and 1551 of the Pennsylvania Rules of Appellate
Procedure, Pa. R.A.P. 1513 and 1551, because he did not timely raise or preserve
the issue in a Petition for Review or Cross-Petition for Review. (Id. ¶¶ 11-12, 19.)
Employer simultaneously filed a Memorandum in Support of its Application to
Preclude and/or Quash.
Claimant filed his answer to the Application to Preclude and/or Quash,
arguing that he may properly raise an alternative interpretation of Section 309(e) of
the Act, and that he argued before both the WCJ and the Board that if he were
found to be a seasonal employee, the expected earnings calculation under Section
309(d.2) was the appropriate method to use in calculating his AWW based on the
language contained in the initial clause of Section 309(e). (Answer ¶ 4.) Claimant
clarified that the issue would only need to be reached if the Court first reverses the
Board’s decision regarding seasonal employment and determines that Claimant
was a seasonal employee. (Id. ¶ 3.) After argument on the issue, this Court denied
the Employer’s Application to Preclude and/or Quash Claimant’s additional issue
via order dated August 17, 2016. Toigo Orchards, LLC v. Workers’ Comp.
Appeal Bd. (Gaffney) (Pa. Cmwlth., No. 722 C.D. 2016, filed Aug. 17, 2016).
II. ARGUMENTS ON APPEAL
On appeal, Employer argues that the Board erred by reversing the WCJ’s
determination that Claimant was a seasonal employee within the meaning of
Section 309(e) of the Act, and reversing and modifying the WCJ’s calculation of
Claimant’s AWW as a seasonal employee under that same section. Employer
9
further argues that the Board erred by reversing the WCJ’s decision to omit an
award for a healing period pursuant to Section 306(c)(25) of the Act.
A. Seasonal Employment
Employer first argues that the Board erred by reversing the WCJ’s
determination and concluding that Claimant was not a seasonal employee under
Section 309(e) of the Act, which provides, as follows:
(e) Except as provided in clause (d.1) or (d.2), in occupations which
are exclusively seasonal and therefore cannot be carried on throughout
the year, the average weekly wage shall be taken to be one-fiftieth of
the total wages which the employe has earned from all occupations
during the twelve calendar months immediately preceding the injury,
unless it be shown that during such year, by reason of exceptional
causes, such method of computation does not ascertain fairly the
earnings of the employe, in which case the period for calculation shall
be extended so far as to give a basis for the fair ascertainment of his
average weekly earnings.
77 P.S. § 582(e) (emphasis added). Employer argues that the Board erred by
reading Section 309(e) too broadly and determining that Claimant’s job at the time
of his injury, as an extra tractor driver for the apple harvest, was “employment in
itinerant agricultural labor” because such an occupation can be carried on for pay
during the rest of the year. Employer contends that Claimant’s job as an extra
tractor driver for the apple harvest falls squarely within the Pennsylvania Supreme
Court’s definition of seasonal employment in Froehly, 139 A. at 730.
The Act does not define what constitutes an “exclusively seasonal”
occupation. However, in Froehly, the Supreme Court stated that “[s]easonal
occupations logically are those vocations which cannot, from their very nature, be
continuous or carried on throughout the year, but only during fixed portions of it.”
10
Id. at 730. The Supreme Court further stated that “labor or occupation possible of
performance and being carried on at any time of the year, or through the entire
twelve months, is certainly not seasonal.” Id. In Froehly, the claimant was injured
while working as a dishwasher for an amusement park that was only open during
the summer months from June to September. The amusement park argued that the
claimant was a seasonal employee because the park was only open for a few
months out of the year, and the claimant’s employment did not extend beyond that
time. The Supreme Court rejected that argument and held that dishwashing was
not a seasonal occupation, even though the park was only open for a few months
out of the year, because it could be carried on throughout the year. Id. The
inquiry, thus, focused on the nature of the work rather than on the period during
which the business operates.
This Court utilized the analysis from Froehly in Ross v. Workers’
Compensation Appeal Board (Arena Football League), 702 A.2d 1099 (Pa.
Cmwlth. 1997). In Ross, the claimant, a professional football player, was injured
during the term of his contract, which was signed on May 25, 1990 and effective
through the end of October 1990. Id. at 1100. The employer argued that the
claimant should be considered a seasonal employee and that his benefits were
incorrectly calculated, and the WCJ and the Board agreed. The claimant argued on
appeal that, pursuant to Froehly, he was not a seasonal worker because, although
the employer had a set season, he could play football for other teams in other
leagues. We disagreed and distinguished the case from Froehly because his season
of play was for a fixed period of time, and his contract prohibited him from
engaging in off-season play. Id. at 1101. Thus, we held that the claimant was a
seasonal employee. Id.
11
We have more recently addressed Froehly and seasonal employment in
several unreported decisions,7 which Claimant cites in support of the Board’s
decision. In Statlers Family Fun Center v. Workers’ Compensation Appeal Board
(Sarnese) (Pa. Cmwlth., No. 1414 C.D. 2009, filed Mar. 17, 2010), the claimant, an
assistant manager at an amusement park, which only remained open from March
through October, sustained a work-related injury while assisting patrons of the
employer’s go-cart track. In determining that the claimant was not a seasonal
employee under the Act, the Court considered the duties that the claimant
performed as an assistant manager, which can be carried out year-round for any
employer. Id., slip op. at 5. The Court held that the question in seasonal
employment cases is “whether the job . . . performed is capable of being carried on
for pay during the rest of the year.” Id. at 9 (citing Froehly, 139 A. at 730).
Although the employer attempted to rely on Ross, we distinguished the case from
Ross, stating that the claimant did not have a contract that limited her work to a
fixed period of the year or that prohibited her from working for other employers
during the off-season. Id.
More recently, in Keenan v. Workers’ Compensation Appeal Board (Cocco)
(Pa. Cmwlth., No. 1061 C.D. 2014, filed July 10, 2015), this Court examined the
nature of the claimant’s occupation as a laborer that installed and removed cloth
awnings and concluded that the position was capable of being performed
throughout the entire year and was, thus, not seasonal. Id., slip op. at 7. The Court
noted that, unlike the claimant in Ross, this claimant did not have a contract that
7
Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of this
court issued after January 15, 2008, may be cited “for its persuasive value, but not as binding
precedent.” 210 Pa. Code § 69.414(a).
12
precluded him from finding employment as a laborer elsewhere, and although he
expected to be laid off in the winter, the claimant would continue work when the
weather became more suitable for working outside. Id.
Based on our recent case law, which, consistent with the humanitarian
purpose of the Act, has expansively construed the types of labor or occupations
that can be carried on throughout the year, we conclude that the Board did not err
in concluding that Claimant was engaged in “itinerant agricultural labor,” and that
his position as a temporary tractor driver for the apple harvest is not seasonal
employment under Section 309(e) of the Act. Itinerant farm laborers travel from
state to state to harvest crops or engage in other work related thereto, (see Mr.
Calloway’s Testimony, R.R. at 100a), and although one season may end, laborers’
work can still be carried on for pay throughout the year. Here, Claimant was hired
as a tractor driver, albeit on a temporary basis, and a tractor driver can perform his
work for pay throughout the year. Further, unlike the claimant in Ross, who had
signed a seasonal professional football employment contract that precluded him
from performing that occupation for other employers, Claimant did not have a
contract prohibiting him from finding work as a laborer somewhere else.
Employer’s point is well taken that, other than the football player in Ross, it is hard
to imagine employment that would be classified today as exclusively seasonal, if
itinerant agricultural workers are not so classified. However, this interpretation is
consistent with our precedent, and accordingly, we affirm the Board’s conclusion
that Claimant was not a seasonal employee.
13
B. Average Weekly Wage Calculation
Both Employer and Claimant have raised questions about the calculation of
Claimant’s AWW. However, because we determined that Claimant was not a
seasonal employee, Employer’s and Claimant’s arguments about the application of
Section 309(e), which governs the calculation of AWW for occupations that are
“exclusively seasonal,” are not relevant to this case. Nonetheless, because of the
questions raised regarding the calculation of Claimant’s AWW, we will briefly
explain why the Board did not err in relying on Burkhart.
In Burkhart, the claimant was employed as a laborer for 16 weeks, but
worked for only 12 weeks before he was injured. As in this case, the claimant
there also did not have a specific number of work hours per week. After reviewing
both Sections 309(d)(1) and (d.2),8 and the employment history of the claimant and
the employer, the Board concluded that neither applied. Specifically, Section
309(d.1) did not apply because that subsection was intended to govern long-term
employment relationships, and Section 309(d.2) did not “reflect[] economic reality
because . . . [the claimant] did not have an expected number of weekly hours to
8
Sections 309(d.1) and (d.2), added by the Act of June 24, 1996, P.L. 350, as amended, 77
P.S. § 582(d.1)-(d.2), provide, as follows:
(d.1) If the employe has not been employed by the employer for at least three
consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately
preceding the injury, the average weekly wage shall be calculated by dividing by
thirteen the total wages earned in the employ of the employer for any completed
period of thirteen calendar weeks immediately preceding the injury and by
averaging the total amounts earned during such periods.
(d.2) If the employe has worked less than a complete period of thirteen calendar
weeks and does not have fixed weekly wages, the average weekly wage shall be
the hourly wage rate multiplied by the number of hours the employe was expected
to work per week under the terms of employment.
14
work.” Burkhart, 896 A.2d at 10. The Board, therefore, applied an alternative
calculation and arrived at the claimant’s AWW by dividing his gross wages by 12,
the number of weeks the claimant actually worked and earned wages. Id. On
appeal, this Court agreed with the Board that the alternative calculation fairly
assessed the claimant’s earnings when he was actually working and advanced the
humanitarian purpose of the Act, as well as the purpose of Section 309 to
accurately capture economic reality when calculating a claimant’s AWW. Id. at
13; see Reifsnyder v. Workers’ Comp. Appeal Bd. (Dana Corporation), 883 A.2d
537, 545 (Pa. 2005) (recognizing that a claimant’s AWW should reflect economic
reality); Hannaberry HVAC v. Workers’ Comp. Appeal Bd. (Snyder, Jr.), 834
A.2d 524, 532-534 (Pa. 2003) (same).
Here, similar to the claimant in Burkhart, Claimant was employed as a
tractor driver from September to November, or approximately eight to nine weeks,
at the rate of $9.00 per hour. However, he only worked and earned wages for five
weeks before he was injured. Claimant and Mr. Calloway both testified that
Claimant’s normal working hours were 7:00 a.m. to 5:00 p.m., and that Claimant
was not expected to work when it rained. (R.R. at 63a, 84a, 114a, 117a.)
Claimant’s pay stubs, admitted into evidence at the hearing, showed that his hours,
and thus his wages,9 varied for each of the five weeks he worked before he was
injured, similar to the claimant’s in Burkhart. Because Claimant did not have a
long-term employment relationship with Employer and did not have a specific
number of hours he worked per week, he does not fall into either (d.1) or (d.2) and,
9
Claimant worked the following hours each week, respectively: 22.0, 34.3, 48.3, 52.0,
and 38.0. Claimant’s wages for those weeks were, respectively, as follows: $198.00, $310.50,
$436.50, $468.00, and $342.00, for a total of $1,755.00. (Board Op. at 8-9.)
15
therefore, an alternative calculation was proper. We see no error in the Board’s
calculation, in which it divided Claimant’s total gross earnings by the weeks he
worked, which yielded an AWW of $351.00 ($1,755.00 divided by 5 weeks) and a
benefit rate of $315.90. Accordingly, we affirm the Board’s Order in this regard.
C. Healing Period
Finally, Employer argues that the Board erred by reversing the WCJ’s
decision to omit an award for a healing period pursuant to Section 306(c)(25) of
the Act. Section 306(c)(25) of the Act provides, in pertinent part, as follows:
(25) In addition to the payments hereinbefore provided for permanent
injuries of the classes specified, any period of disability necessary and
required as a healing period shall be compensated in accordance with
the provisions of this subsection. The healing period shall end (i)
when the claimant returns to employment without impairment in
earnings, or (ii) on the last day of the period specified in the following
table, whichever is the earlier:
***
For the loss of an eye, ten weeks.
77 P.S. § 513(25) (emphasis added). Specifically, the question is whether
Claimant, who was retired prior to his work with Employer and who returned to
retirement after he was injured and was retired when he sought benefits for the loss
of his eye, is entitled to benefits for a “healing period.”
In Sun Oil Company v. Workmen’s Compensation Appeal Board (Davis),
600 A.2d 684, 686 (Pa. Cmwlth. 1991), this Court stated that Section 306(c)(25)
does not require the claimant to show a loss of earnings before a healing period
will be awarded. Rather, the loss of earnings is presumed by a claimant’s showing
16
of a specific loss, and therefore a claimant does not have to show an actual
impairment of earning capacity to qualify for the healing period of benefits under
Section 306(c)(25). This Court clarified Sun Oil (Davis)’s holding in Sellari v.
Workmen’s Compensation Appeal Board (NGK Metals Corporation), 698 A.2d
1372 (Pa. Cmwlth. 1997), stating that “[a]lthough Sun Oil [(Davis)] holds that a
claimant is entitled to a presumption that the specific loss entitles him or her to the
healing period prescribed under Section 306(c)(25) of the Act, such a presumption
is rebuttable.” Id. at 1377 (emphasis in original). Thus, a claimant’s entitlement
to a healing period is not automatic, and it is “the employer’s burden to present
evidence to rebut the presumption of the claimant’s entitlement to [a] . . . healing
period.” Id.
Employer argues that it rebutted the presumption that Claimant was entitled
to the 10-week healing period because he was retired and collected Social Security
retirement benefits both prior to and after his work with Employer, and he had no
intention of returning to work after his injury. Employer relies on Sun Oil
Company v. Workers’ Compensation Appeal Board (Carroll), 811 A.2d 1131 (Pa.
Cmwlth. 2002), to support its argument. In Sun Oil (Carroll), this Court stated that
the claimant, who retired before his specific loss benefits began, was not entitled to
the payment of a healing period because “he did not require a period for healing.”
Id. at 1136. The claimant in that case discovered his work-related hearing loss
after he had retired from his employer. Id. at 1132. The Court noted that the
claimant did not retire because of his specific loss of hearing, and thus, “he [did]
not need a healing period to recover from his disability.” Id. at 1136.
Here, similar to the claimant in Sun Oil (Carroll), Claimant testified that he
had not worked prior to his work injury for about six and a half years, and he had
17
been receiving Social Security retirement benefits before the injury for
approximately six years since he retired at the age of 62. (R.R. at 77a-78a, 85a-
86a.) At the time of the hearing, Claimant was 70 years old. (Id. at 81a.)
Claimant testified that he stopped his Social Security retirement benefits while he
was working for Employer in Pennsylvania, and he admitted to receiving those
benefits again when he returned to Florida, as he had planned to do after the apple
harvest was over. (Id. at 79a, 84a-85a.) Claimant went back into retirement upon
his return to Florida, and there is no evidence in the record to show that Claimant’s
work injury was the reason he went back into retirement or that he intended to go
back to work for any employer after his work injury. Moreover, Claimant did not
file his Claim Petition until July 1, 2014, after he had returned to Florida and
returned to retirement. Consistent with Sun Oil (Carroll), Employer has rebutted
the presumption that Claimant’s specific loss entitled him to a healing period and,
therefore, the Board erred in reversing the WCJ and awarding Claimant benefits
for a 10-week healing period. We therefore reverse the Board’s decision in that
regard.
III. CONCLUSION
For the foregoing reasons, the Board’s decision is affirmed in part and
reversed in part.
_____________________________________
RENÉE COHN JUBELIRER, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Toigo Orchards, LLC and :
Nationwide Insurance Company, :
Petitioners :
:
v. : No. 722 C.D. 2016
:
Workers’ Compensation Appeal :
Board (Gaffney), :
Respondent :
ORDER
NOW, March 13, 2017, the Order of the Workers’ Compensation
Appeal Board, entered in the above-captioned matter, is hereby AFFIRMED in
part and REVERSED in part. The Order is AFFIRMED to the extent that it
determines that Earl Gaffney (Claimant) was not a seasonal employee under the
Workers’ Compensation Act1 and applies an alternative average weekly wage
calculation pursuant to Burkhart Refractory Installation v. Workers’ Compensation
Appeal Board (Christ), 896 A.2d 9 (Pa. Cmwlth. 2006). The Order is
REVERSED to the extent that it awards Claimant benefits for a 10-week healing
period.
_____________________________________
RENÉE COHN JUBELIRER, Judge
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.