D. Hawkins v. CJ's Tire and Auto, Inc. & The UEGF (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dessalont Hawkins, :
Petitioner :
:
v. :
:
CJ’s Tire and Auto, Inc. and The :
Uninsured Employers Guaranty Fund :
(Workers’ Compensation Appeal :
Board), : No. 248 C.D. 2022
Respondents : Submitted: March 10, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 21, 2023
Dessalont Hawkins (Claimant) petitions for review of the February 22,
2022 opinion and order of the Workers’ Compensation Appeal Board (Board)
affirming the decision of workers’ compensation judge Geoffrey Lawrence (WCJ
Lawrence) denying Claimant’s reinstatement petition, granting the Uninsured
Employers Guaranty Fund’s (UEGF) termination petition, and modifying
Claimant’s average weekly wage. Upon review, we affirm.
I. Background
Claimant was involved in a motor vehicle accident on January 2, 2017,
his first full day of work as a tow truck driver for CJ’s Tire and Auto, Inc.
(Employer).1 See Reproduced Record (R.R.) at 64a. Claimant was not wearing his
seatbelt and was thrown around the cab of the truck as a result of the collision. Id.
at 41a. The accident occurred approximately half an hour into Claimant’s workday,
while he was responding to the second call of the day. Id. at 64a, 243a & 257a.
Claimant filed a claim petition against Employer alleging that he
sustained injuries to his lower back, left hip and left shoulder as result of the accident.
R.R. at 5a. Claimant also filed a petition for penalties, alleging that Employer
violated the Workers’ Compensation Act (Act)2 by failing to issue necessary Bureau
documents under the Act within 21 days of Claimant’s injury. Id. at 442a. Claimant
later filed a claim petition naming both “Uninsured Employer” and the UEGF as
defendants. Id. at 13a-14a.3
In August 2017, workers’ compensation judge Scott Olin (WCJ Olin)
held a hearing, during which Claimant provided the following testimony. See R.R.
at 21a. Claimant was informed he would be paid per call. Id. at 32a-33a. Claimant
1
Claimant testified he worked under the observation of a fellow employee for two days
prior to the work accident and that January 2, 2017 was his “first full day by [himself] as a driver”
for Employer. Reproduced Record (R.R.) at 64a. Claimant referred to this process of working
under observation as “trailing” and indicated that “all tow companies” engage in this practice “to
see what [new hires] can do,” regardless of their level of experience. Id.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
The claim petition indicated that employees were to file this particular petition “if they
[were] seeking an award against their employer and the [UEGF] because their employer did not
maintain workers’ compensation insurance coverage and was not approved as a self-insurer at the
time of the injury.” R.R. at 13a.
2
maintained that Employer did not provide a set schedule and that the number of
hours he was expected to work per week was not discussed at the time of hiring. Id.
Employer’s office manager relayed to employees the start time and end time for their
shifts. Id. at 35a-36a. Claimant anticipated working 12-15 hours per day for
Employer, explaining that tow truck drivers “work off calls, so we’re out there a
little longer.” Id. at 32a-33a. Claimant acknowledged that his daily earning potential
as a tow truck driver “fluctuate[d],” noting, for instance, that a day involving
primarily roadside assistance would yield roughly $90 to $100. Id. at 63a. Claimant
anticipated that the nature of the call would dictate the amount earned for the call,
noting that tow truck drivers typically earn $8 responding to a request for a jump
start and $15 for performing a tire change. Id. at 33a-34a. Claimant asserted that he
was not compensated for the limited work he performed directly for Employer. Id.
at 64a.
In October 2018, WCJ Olin held another hearing, at which Claimant
and Jamal Coleman (Coleman), Employer’s owner, testified. See R.R. at 240a &
243a. Claimant testified, in relevant part, that he had 16 years’ experience working
as a tow truck driver and asserted that he was a hustler. Id. at 257a.
Coleman provided the following testimony. Employees received $16
per call, and each call generally took around one hour to complete. R.R. at 245a-
46a. Coleman explained that he could pay employees “$16 per call because [his
company provides] roadside assistance.” Id. at 245a. For calls of longer duration,
employees might receive $16 per hour beyond the first hour. Id. at 246a. Employees
who were “good hustlers” and were able to complete 10 to 12 calls per day could
earn $700 to $900 per week. Id. at 247a. Employees were expected to respond to
at least six or seven calls per day. Id. At the time of the accident, Coleman had not
3
yet provided a schedule to Claimant. Id. at 248a. Claimant did not complete the tow
following the accident, and Coleman did not believe that Claimant was paid for the
call. Id. at 249a. Coleman had “a few” hustlers, but insisted that “[t]here[ was] no
possible way [he] could live paying each employee $800 a week.” Id. at 245a &
252a.
By decision rendered March 19, 2019, WCJ Olin granted the claim
petitions and denied the penalty petition. R.R. at 520a; see also id. at 279a & 287a.
WCJ Olin found that on January 2, 2017, as a result of a motor vehicle accident,
Claimant sustained work-related injuries in the form of cervical strain/sprain,
trapezial myofasciitis, left rotator cuff tendinopathy and lumbar strain/sprain with
radiculopathy. Id. at 520a. WCJ Olin determined that Claimant had a pre-injury
average weekly wage of $800, yielding a compensation rate of $533.33 per week.
Id. Further, WCJ Olin found that on July 15, 2017, for reasons other than his work-
related disability, Claimant left a light-duty position paying $325 per week. R.R. at
520a-21a.4 Accordingly, WCJ Olin awarded Claimant temporary total indemnity
benefits of $533.33 per week from January 2, 2017 through July 14, 2017 and partial
disability benefits of $316.67 per week from July 15, 2017 onwards. Id. at 287a &
520a. Moreover, WCJ Olin concluded that UEGF’s participation in the litigation
barred any claim for penalties. Id. at 286a.
In December 2019, UEGF petitioned to terminate Claimant’s workers’
compensation benefits, alleging that Claimant had fully recovered as of September
13, 2019. R.R. at 520a. In February 2020, Claimant filed a reinstatement petition,
4
In July 2017, Claimant performed light-duty work for Allways Towing. R.R. at 445a.
4
asserting that his condition had worsened to the point of total disability as of
February 4, 2019.5 Id.
In February 2020, David Vegari, M.D. (Dr. Vegari), a board-certified
orthopedic surgeon, provided deposition testimony on behalf of UEGF. R.R. at
520a. Dr. Vegari had performed an independent medical examination (IME) of
Claimant in September 2019, during which he recorded Claimant’s history and
complaints, reviewed medical records and performed a physical examination. Id. at
521a. Claimant complained of neck and back pain, but informed Dr. Vegari that the
pain in his hip and shoulder had resolved. Id. at 323a-24a & 521a. Based on his
evaluation, Dr. Vegari opined that Claimant had fully recovered from his work
injuries, and that Claimant was capable of performing his pre-injury job without
restrictions. Id. at 521a. Dr. Vegari also stated that (magnetic resonance imaging)
MRI studies performed in 2017 of Claimant’s neck and lower back showed
insignificant degenerative changes. Id.
In April 2020, Gerald Dworkin, D.O. (Dr. Dworkin), a doctor with
board certification in the specialties of physical medicine and rehabilitation and
interventional pain management, provided telephonic deposition testimony on
behalf of Claimant. R.R. at 355a-56a & 521a. Dr. Dworkin began treating Claimant
in September 2017. Id. at 521a. Dr. Dworkin examined Claimant on April 15, 2019,
at which time he concluded that Claimant’s condition had worsened to the point that
he was incapable of handling even the light-duty position that he performed in July
2017. Id. In August 2019, Claimant received a trial implantation of a spinal cord
stimulator in the lumbar area. Id. Claimant experienced 70% improvement in
5
Claimant states in his appellate brief that “[b]ased on Dr. Dworkin’s testimony, [he] is
seeking reinstatement as of April 15, 2019,” the date of Dr. Dworkin’s examination. Claimant’s
Br. at 8 n.1.
5
symptoms, and a permanent stimulator was implanted on February 13, 2020. Id. Dr.
Dworkin concluded, however, during an examination of Claimant in March 2020
that Claimant was unable to work, as he was recovering from the effects of the
implantation of the spinal cord stimulator, and that recovery would take at least three
to six months. Id.
On June 5, 2020, Claimant testified by telephonic deposition that his
pain had worsened to the point that he was unable to work in any capacity. R.R. at
522a. He was in constant pain, and his back and left foot were “giving out” on him.
Id. at 424a & 522a. Claimant has not worked since July 2017. Id. at 522a.
By opinion and order mailed July 21, 2020, the Board affirmed in part,
reversed in part, and vacated and remanded in part WCJ Olin’s March 19, 2019
determination. R.R. at 442a. The Board reversed WCJ Olin’s decision that Claimant
sustained lumbar radiculopathy as a result of the January 2, 2017 work accident. Id.
at 447a. Further, the Board vacated WCJ Olin’s determination that Claimant’s
average weekly wage was $800 and remanded the matter for a subsequent
determination on that issue. Id. at 449a & 452a (citing Section 309(d.2) of the Act,
77 P.S. § 582(d.2).
By decision circulated June 7, 2021, WCJ Lawrence6 denied Claimant’s
reinstatement petition, granted UEGF’s termination petition and reduced Claimant’s
average weekly wage from $800 to $500. R.R. at 525a. WCJ Lawrence determined
that Claimant’s testimony as to his symptoms and disability was not credible, citing
Claimant’s appearance and demeanor during live testimony conducted via Skype
video and “credible medical evidence.” Id. at 522a. Further, WCJ Lawrence did not
6
The matter was assigned to WCJ Lawrence following WCJ Olin’s retirement. R.R. at
520a.
6
credit Dr. Dworkin’s testimony that Claimant’s condition had worsened by April
2019 to the point that Claimant could not perform the light-duty work assigned to
him in July 2017, concluding that Dr. Dworkin failed to provide a “detailed medical
explanation” supporting the asserted worsening of Claimant’s condition. Id.
Moreover, WCJ Lawrence concluded that Claimant failed to demonstrate he was
incapable of sweeping or dusting offices, highlighting WCJ Olin’s finding that
Claimant had been assigned and was capable of performing such work roughly two
years prior. Id.
Moreover, WCJ Lawrence determined that the testimony of Dr. Vegari
was credible and convincing and that it was more credible than the conflicting
opinions of Dr. Dworkin. R.R. at 522a. WCJ Lawrence emphasized Dr. Vegari’s
qualifications as a board-certified orthopedic surgeon and found that Dr. Vegari was
thorough in examining Claimant, taking his medical history, and reviewing his
medical records. Id. at 522a-23a.
Accordingly, WCJ Lawrence concluded that Claimant had fully
recovered as of September 19, 2019, and terminated Claimant’s medical and wage
loss benefits as of that date. R.R. at 523a & 525a.
Regarding the question of Claimant’s average weekly wage, WCJ
Lawrence found that “[C]laimant’s testimony allowed that his wages as a tow truck
driver could range between $100.00 and $200.00 per day,” and concluded that $100
per day was a “reasonable estimate” in light of the limited duration of his
employment. R.R. at 523a. WCJ Lawrence, therefore, fixed Claimant’s pre-injury
average weekly wage at $500 per week. Id.
Claimant appealed, and the Board affirmed. R.R. at 542a. The Board
determined that the testimony of Dr. Vegari constituted substantial, competent
7
evidence supporting the denial of Claimant’s reinstatement petition and the grant of
UEGF’s termination petition. Id. at 539a-40a. The Board rejected Claimant’s
contention that Dr. Vegari’s purported failure to accept WCJ Olin’s March 2019
determination that Claimant had not fully recovered from his work injuries rendered
Dr. Vegari’s testimony incompetent; the Board reasoned that Dr. Vegari
“acknowledged the work injuries as defined by WCJ Olin and opined that the
processes and residuals connected thereto were not present at the time of his
evaluation.” Id. at 540a. Further, the Board concluded that Claimant’s own
testimony regarding his wages and work schedule supported an average weekly
wage of $500. Id. at 540a-41a.
II. Issues
Before this Court,7 Claimant argues that the Board erred in affirming
WCJ Lawrence’s grant of UEGF’s termination petition, because Dr. Vegari’s
medical “opinion is incompetent as a matter of law as it is contradictory to
established facts of record.” Claimant’s Br. at 14-15. Specifically, Claimant asserts
that Dr. Vegari’s opinion that Claimant should have recovered within six weeks of
his January 2017 work injury contradicts WCJ Olin’s finding that Claimant had not
yet fully recovered as of March 2019. Id. at 14-17 (first citing R.R. at 335a; and
then citing Williams v. Workers’ Comp. Appeal Bd. (Hahnemann Univ. Hosp.), 834
A.2d 679, 684 (Pa. Cmwlth. 2003)). Claimant also maintains that Dr. Vegari’s
opinions lack substantial evidentiary support, as he failed to take into account
7
“This Court’s review in workers’ compensation appeals is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated.” Whitfield v. Workers’ Comp. Appeal
Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599, 605 n.6 (Pa. Cmwlth. 2018); see also
Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
8
Claimant’s need for a spinal cord stimulator, discounted the MRI findings and
disregarded the electromyography studies. Id. at 17-18.
Further, Claimant contends that the Board erred in affirming WCJ
Lawrence’s denial of Claimant’s reinstatement petition, as Dr. Dworkin provided a
“detailed explanation” that Claimant’s condition had worsened to the point that he
was totally disabled as of April 15, 2019, such that Claimant met his burden under
Bufford v. Workers’ Compensation Appeal Board (North American Telecom), 2
A.3d 548, 551 (Pa. 2010). Claimant’s Br. at 20-22 (citing R.R. at 367a-68a & 370a).
Claimant also asserts that the Board erred in affirming WCJ Lawrence’s
modification of his pre-injury average weekly wage. Claimant’s Br. at 22-24.
Claimant contends that Coleman’s testimony that a “hustler” could earn $700 to
$900 per week constitutes the “best evidence” to determine his average weekly
wage. Id. at 22-23. Thus, Claimant insists the Board should have utilized WCJ
Olin’s reasonable “compromise” of $800, as it was “right in the middle of Coleman’s
range,” and requests that the Court reinstate this figure. Id. at 23-24.8
8
Claimant also requests that this Court “re-examine” the Board’s reversal of WCJ Olin’s
finding that Claimant sustained lumbar radiculopathy as a result of the January 2017 work
accident. See Claimant’s Br. at 19 n.3. However, Claimant did not appeal the Board’s July 21,
2020 opinion and order; thus, Claimant failed to preserve this argument for appellate review. See
Section 5571(b) of the Judicial Code, 42 Pa.C.S. § 5571(b) (providing that “an appeal from a
tribunal or other government unit to a court . . . must be commenced within 30 days after entry of
the order from which the appeal is taken”); Pa.R.A.P. 1512(a)(1) (stating that “[a] petition for
review of a quasijudicial order . . . shall be filed with the prothonotary of the appellate court within
30 days after the entry of the order”).
UEGF briefed its arguments in opposition to Claimant. However, Employer was precluded
from participating in this matter on appeal for failure to file an appellate brief. See Cmwlth. Ct.
Order, 12/1/22.
9
III. Discussion
Claimant contends that the Board erred in affirming the grant of
UEGF’s termination petition on the basis of Dr. Vegari’s legally incompetent
testimony.9 We disagree. According to Claimant, Dr. Vegari’s opinion that
Claimant should have recovered from his work-related injuries within six weeks of
the January 2, 2017 work accident contradicts WCJ Olin’s March 19, 2019
determination that Claimant had not yet fully recovered, thus rendering Dr. Vegari’s
medical testimony legally incompetent under Williams. See Claimant’s Br. at 15-
17. “It is well-settled that where an expert’s opinion is based upon an assumption
which is contrary to the established facts of record, that opinion is worthless.”
Williams, 834 A.2d at 684 (citing Noverati v. Workmen’s Comp. Appeal Bd.
(Newtown Squire Inn), 686 A.2d 455 (Pa. Cmwlth. 1996)). However, here, neither
aspect of Dr. Vegari’s dual opinion that Claimant should have recovered within six
weeks and that Claimant had fully recovered by September 19, 2019 contradicts
WCJ Olin’s determination that Claimant was partially disabled as of March 19,
2019. Dr. Vegari did not opine that Claimant had fully recovered as of March 19,
9
As our Supreme Court has explained,
the employer bears the burden of proof in a termination proceeding
to establish that the work injury has ceased. In a case where the
claimant complains of continued pain, this burden is met when an
employer’s medical expert unequivocally testifies that it is his
opinion, within a reasonable degree of medical certainty, that the
claimant is fully recovered, can return to work without restrictions
and that there are no objective medical findings which either
substantiate the claims of pain or connect them to the work injury.
If the WCJ credits this testimony, the termination of benefits is
proper.
Udvari v. Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997) (footnote
omitted).
10
2019, only that he should have recovered by that time. Thus, Dr. Vegari’s opinion
that Claimant should have recovered within six weeks of the January 2, 2017 work
accident does not contradict WCJ Olin’s determination that Claimant remained
partially disabled more than two years after that date. Further, Dr. Vegari opined
that Claimant had fully recovered as of the September 19, 2019 IME, well after WCJ
Olin issued the March 19, 2019 decision. See R.R. at 329a & 338a (opining that
Claimant had “fully recovered” from his work-related injuries “[a]t the time of [the]
examination”); see also id. at 540a (explaining that “Dr. Vegari acknowledged the
work injuries as defined by WCJ Olin and opined that the processes and residuals
connected thereto were not present at the time of his evaluation”) (emphasis added).
Claimant, therefore, fails to establish that Dr. Vegari’s testimony was legally
incompetent on the basis that it was contrary to an established fact of record. See
Williams, 834 A.2d at 685 (deeming legally incompetent an expert’s testimony that
the claimant could not perform the available position at the time it was offered,
where such opinion “contradict[ed] the finding in WCJ Olin’s [prior] decision that
[the c]laimant could perform the instructor position at that time,” thus concluding
that the opinion was “not competent to support the requisite finding that [the
c]laimant could no longer perform the [] position”).
Moreover, WCJ Lawrence expressly deemed Dr. Vegari’s testimony
“credible and convincing” and “[did] not find [C]laimant’s testimony as to his
symptoms and disability related to the work injury credible based on his appearance
and demeanor and when he testified live via Skype video[.]” R.R. at 522a. “While
this Court can and should consider the competency and sufficiency of evidence
presented before a WCJ, the WCJ’s assessment of witness credibility is not subject
to our review on appeal.” Davis v. Workers’ Comp. Appeal Bd. (City of Phila.), 753
11
A.2d 905, 909 (Pa. Cmwlth. 2000); see also Greenwich Collieries v. Workmen’s
Comp. Appeal Bd. (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995) (stating that a
WCJ is “free to accept or reject the testimony of any witness, including a medical
witness, in whole or in part”); Casne v. Workers’ Comp. Appeal Bd. (STAT Couriers,
Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008) (holding that a credibility determination
will be overturned “only if it is arbitrary and capricious or so fundamentally
dependent on a misapprehension of material facts, or so otherwise flawed, as to
render it irrational”).10
We also find meritless Claimant’s contention that the Board erred in
affirming the denial of his reinstatement petition. Claimant maintains that Dr.
Dworkin’s detailed testimony supports that his condition worsened to the point of
total disability as of April 15, 2019, thereby adversely affecting his earning power.11
10
Further, Claimant asserts that WCJ Lawrence’s finding that “Dr. Vegari’s report and
testimony establish that he performed a thorough history, record review and examination” and that
“[h]is opinions were clear and logical,” lacks substantial evidentiary support on the basis that Dr.
Vegari testified he spent 10 minutes examining Claimant, when the exam in fact lasted only 2
minutes. See Claimant’s Br. at 14 (citing R.R. at 323a-30a & 523a). We note, however, that the
portion of Dr. Vegari’s deposition cited by Claimant contains no such statement. Further, we
observe that Claimant’s own testimony contains inconsistencies regarding the duration of the
independent medical examination (IME). See R.R. at 427a (attesting that he was in “[Dr. Vegari’s]
office maybe two minutes,” subsequently asserting that “[he] was in there for maybe a minute,
minute and a half tops,” insisting “that’s no exaggeration”). Moreover, we reiterate that WCJ
Lawrence was taxed with credibility determinations and was free to accept or reject any or all of
any witness’s testimony. Greenwich Collieries, 664 A.2d at 706.
11
We note that contrary to Claimant’s assertion, Bufford does not govern his burden in
seeking reinstatement of total disability benefits under the present circumstances. “Generally, a
claimant seeking reinstatement following a modification of benefits must prove that through no
fault of his own, his disability is again adversely affected by the work injury, and the disability
giving rise to the original claim continues.” Ward v. Workers’ Comp. Appeal Bd. (City of Phila.),
966 A.2d 1159, 1162 (Pa. Cmwlth. 2009) (footnote omitted) (citing Pieper v. Ametek-Thermox
Instruments, Div., 584 A.2d 301 (Pa. 1990)). However, “[a] claimant who seeks to reinstate total
disability benefits, subsequent to a modification to partial disability, based upon job availability
has the burden to prove that the work-related disability increased to the point where he is no longer
12
See Claimant’s Br. at 20-22 (citing Bufford, 2 A.3d at 558; Transcript of Testimony,
4/30/20 at 18-19 & 21, R.R. at 367a-68a & 370a). However, WCJ Lawrence
[did] not find the testimony of Dr. Dworkin that
[C]laimant’s condition worsened in April 2019 such that
he could no longer perform the sedentary work[12] he did
in July 2017 credible. Dr. Dworkin did not give a detailed
medical explanation describing a change in [C]laimant’s
condition which would amount to a worsening. WCJ Olin
noted that [C]laimant was given work such as sweeping
and dusting offices. WCJ Olin found that the work was
within [C]laimant’s capability and this WCJ is not
convinced that nearly two years later [C]laimant became
unable to perform that work.
R.R. at 522a. As noted above, a WCJ’s determination regarding the credibility of a
medical witness is not subject to review on appeal. See Davis, 753 A.2d at 909;
Greenwich Collieries, 664 A.2d at 706; Casne, 962 A.2d at 19. Regardless, “it is
irrelevant whether the record contains evidence to support findings other than those
made by the WCJ; the critical inquiry is whether there is evidence to support the
findings actually made.” Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933
A.2d 1095, 1101 (Pa. Cmwlth. 2007) (quoting Minicozzi v. Workers’ Comp Appeal
Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005)). Thus,
able to perform the job that was previously found to be available.” Mitchell v. Workers’ Comp.
Appeal Bd. (Devereux Found.), 796 A.2d 1015, 1019 (Pa. Cmwlth. 2002) (emphasis added).
12
The work performed by Claimant in July 2017 involved sweeping, dispatching vehicles
and “getting coffee.” R.R. at 285a. Elsewhere in the same decision, WCJ Lawrence more
accurately referred to this work as “light duty,” rather than “sedentary.” R.R. at 521a.
Confusingly, WCJ Olin stated in his March 19, 2019 decision that the “work duties” performed by
Claimant in July 2017, such as “sweeping an office, dispatching vehicles and getting coffee[]
appear[ed] sedentary in nature.” R.R. at 288a.
13
Claimant cannot rely on Dr. Dworkin’s medical testimony to overturn the denial of
his reinstatement petition.13
Lastly, we agree that $500 is a reasonable estimate of Claimant’s pre-
injury average weekly wage. “The question of what constitutes an employee’s
[average weekly wage] is a question of law that is subject to full review by this
court.” Lennon ex rel. Lennon v. Workers’ Comp. Appeal Bd. (Epps Aviation, Inc.),
934 A.2d 153, 155 n.6 (Pa. Cmwlth. 2007). Pursuant to Section 309(d.2) of the Act,
[i]f 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.
77 P.S. § 582(d.2). As our Supreme Court has explained,
subsection (d.2) . . . provides for a prospective calculation
of potential earnings. By its terms, (d.2) contemplates
persons for whom there is little work history with the
employer upon which to calculate the [average weekly
wage]. . . . [S]ubsection (d.2) was intended for . . . those
13
We also deem meritless Claimant’s assertion that Dr. Vegari’s medical opinion lacks
substantial evidentiary support on the basis that he failed to take into account Claimant’s need for
a spinal cord stimulator, discounted the magnetic resonance imaging (MRI) findings and
disregarded the electromyography studies. See Claimant’s Br. at 17-18. Dr. Vegari stated in an
addendum to the IME that Claimant’s subsequent receipt of a spinal cord stimulator did not alter
his initial medical opinion that Claimant was fit to return to full-duty work. R.R. at 300a & 328a.
Further, Claimant’s blank assertion that Dr. Vegari discounted the findings of the 2017 MRI
studies fails to undermine the WCJ’s decision to credit Dr. Vegari’s 2020 medical deposition
testimony. See Casne, 962 A.2d at 19. Moreover, Claimant’s electromyography (EMG) studies
do not constitute substantial evidence subverting Dr. Vegari’s medical opinion that Claimant had
fully recovered from his work injuries. The EMG studies pertained to WCJ Olin’s initial finding
that Claimant sustained lumbar radiculopathy, see R.R. at 106a & 369a, which the Board reversed,
see R.R. at 442a & 523a.
14
instances of work injuries to recently-hired employees for
whom there was, by definition, no accurate measure of
[average weekly wage] other than taking the existing
hourly wage and projecting forward on the basis of the
hours of work expected under the employment agreement.
Reifsnyder v. Workers’ Comp. Appeal Bd. (Dana Corp.), 883 A.2d 537, 546-47 (Pa.
2005). “The question of a claimant’s expected number of hours per week is a
question of fact for the WCJ . . . .” Lahr Mech., 933 A.2d at 1101 (citing Section
309(d.2) of the Act, 77 P.S. § 582(d.2)).14
Here, Employer would have calculated Claimant’s pay per call, rather
than on an hourly basis. Nevertheless, WCJ Lawrence found on the basis of
Claimant’s testimony that his potential compensation ranged from $100 to $200 per
day. See R.R. at 523a. Claimant conceded that his daily earning potential as a tow
truck driver “fluctuate[d],” and that a day involving primarily roadside assistance
would yield roughly $90 to $100. Id. at 63a. Although this testimony presumably
references Claimant’s experience with previous employers, Coleman’s testimony
supports a similar range of daily compensation. Coleman testified that the rate of
pay was typically $16 per call (potentially $16 per hour for calls of longer duration),
and that employees were expected to respond to at least six to seven calls per day.
Id. at 247a. Although Claimant asserts that Coleman’s testimony that a “hustler”
could potentially earn $700 to $900 per week supports that he would have earned an
14
We acknowledge that Section 309(d.2) of the Act is not precisely applicable. Although
Claimant worked less than 13 calendar weeks for Employer, he had neither an hourly rate of pay
nor an agreement with Employer as to the number of hours he was required to work per week. See
Section 309 of the Act, 77 P.S. § 582(d.2). Nevertheless, latitude for projections is permitted by
Section 309(d.2) of the Act, 77 P.S. § 582(d.2). See Hannaberry HVAC v. Workers’ Comp. Appeal
Bd. (Snyder, Jr.), 834 A.2d 524, 532 (Pa. 2003) (citing Section 309(d.2) of the Act, 77 P.S. §
582(d.2)) (stating that “in the case of recently hired workers, the statute permits a projection based
upon the number of hours the employee was ‘expected’ to work”).
15
average weekly wage of $800, Coleman insisted that he could not afford that level
of compensation for all employees. See Claimant’s Br. at 22-24.; R.R. at 245a &
252a. Thus, Coleman’s testimony supports a projected average weekly wage of
$480 to $56015 (approximately $100 per day). Due to the unpredictable nature of
Claimant’s work schedule and the unusually limited duration of his employment,
any amount beyond this range would constitute speculation, rather than the
“prospective calculation” permitted by Section 309 of the Act. Reifsnyder, 883 A.2d
at 546. We, therefore, agree with WCJ Lawrence that $500 is a reasonable average
weekly wage.
IV. Conclusion
For the foregoing reasons, we affirm the February 22, 2022 opinion and
order of the Board.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
15
These sums were calculated by multiplying $16 by 6 and 7, respectively, to produce
projected daily earnings of $96 to $112, and then multiplying the resultant amounts by 5.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dessalont Hawkins, :
Petitioner :
:
v. :
:
CJ’s Tire and Auto, Inc. and The :
Uninsured Employers Guaranty Fund :
(Workers’ Compensation Appeal :
Board), : No. 248 C.D. 2022
Respondents :
ORDER
AND NOW, this 21st day of August, 2023, the February 22, 2022 order
of the Workers’ Compensation Appeal Board is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge