          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pravco, Inc. and New Jersey              :
Manufacturers Insurance Company,         :
                         Petitioners     :
                                         :
                   v.                    :   No. 197 C.D. 2015
                                         :   SUBMITTED: September 18, 2015
Workers’ Compensation Appeal             :
Board (Marshall),                        :
                      Respondent         :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                             FILED: December 18, 2015


            Employer Pravco, Inc. and New Jersey Manufacturers Insurance
Company petition for review of an order of the Workers’ Compensation Appeal
Board that affirmed the decision of a Workers’ Compensation Judge (WCJ) to
grant the claim and penalty petitions of Claimant Edward Marshall. We affirm the
Board’s order granting the claim and penalty petitions, but reverse it to the extent
that the Board erred in affirming the calculation of Claimant’s average weekly
wage (AWW).          Accordingly, we remand this matter for a modification of
Claimant’s benefits, including the awarded penalty, to reflect an accurate AWW.1
              After working for Employer for three weeks, Claimant filed a claim
petition in March 2012 alleging that he sustained an injury to his left ankle in
September 20102 while in the course and scope of his employment as a union
roofer. Claimant also filed a penalty petition alleging that Employer violated the
Workers’ Compensation Act (Act)3 by failing to timely file bureau documents
within twenty-one days of the work injury. Notwithstanding Employer’s timely
answers denying the allegations of each of those petitions, it does not dispute on
appeal that the correct date of injury is September 2011 and that there are grounds
for the penalty petition.
              The WCJ granted the claim petition, accepting as credible the
testimony of Claimant and board-certified foot and ankle surgeon Albert Anaim,
M.D. In calculating an average weekly wage (AWW), she accepted Claimant’s
testimony from his July 2012 deposition that he was paid $30.78 per hour and
typically worked forty hours per week, depending on the weather. In so doing, she
rejected Employer’s Exhibit D-1, depicting a statement of wages for Claimant with
an AWW of $495.79 and a corresponding compensation rate of $429. January 18,
2013 Hearing, Employer’s Exhibit D-1 at 1; Reproduced Record (R.R.) at 122a.
Accordingly, the WCJ calculated Claimant’s AWW as $1231.20 pursuant to
Section 309(d.2) of the Act,4 77 P.S. § 582(d.2), and awarded him temporary total
disability benefits in the weekly amount of $828.80, beginning September 3, 2011

    1
      In May 2015, this Court denied Employer’s application for supersedeas.
    2
      There is no dispute on appeal that the injury occurred in September 2011.
    3
      Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501 - 2708.
    4
      This section was added by the Act of June 24, 1996, P.L. 350.



                                               2
and ongoing, thereby ruling that he was entitled to partial disability benefits during
the time period that he worked.5 In addition, the WCJ granted Claimant’s penalty
petition, assessing penalties in the amount of twenty percent on all compensation
owed.      The Board affirmed6 and Employer’s petition for review challenging
Claimant’s AWW followed.7
              On appeal, Employer argues that the WCJ erred in calculating the
AWW because she declined to afford stipulation status to an on-the-record
colloquy between the attorneys regarding Employer’s Exhibit D-1. The disputed
colloquy, wherein the WCJ seemingly accepted the parties’ stipulation, is as
follows:
              Mr. Dremann [Employer’s counsel]: Your Honor, we
              have first the Statement of Wages with supporting wage
              documentation from the employer.
              Judge Santoro: D-1. Any objection to D-1?
              Ms. Chandy [Claimant’s counsel]: No objection to the
              submission, Your Honor. But if we disagree with the
              calculation, we’ll provide that with our brief?
              Judge Santoro: No. That one I won’t do for you.
              Ms. Chandy: Okay.
              Judge Santoro: Did they have this before today?
              Mr. Dremann: Yes, for a long time.
              Judge Santoro: Okay, then no.

    5
       Where an employee does not have fixed hourly wages and has worked for less than
thirteen calendar weeks, Section 309(d.2) provides that the AWW shall be the hourly wage rate
times the number of hours the employee is expected to work per week under the terms of
employment. ($30.78 x 40 = $1231.20, $1231.20 x 66 2/3 = $820.80) Although the WCJ’s
order indicates $828.80, Finding of Fact No. 4 reflects the accurate calculation of $820.80.
     6
       Alfonso Frioni, Jr., chairman of the Workers’ Compensation Appeal Board, concurred in
the result only.
     7
       The determination of an AWW is a question of law, subject to our plenary review.
Anderson v. Workers’ Comp. Appeal Bd. (F.O. Transp.), 111 A.3d 238, 244 (Pa. Cmwlth. 2015).



                                             3
                Ms. Chandy: Your Honor, we do agree to the Statement
                of Wages. I apologize.
                Judge Santoro: No problem. You make my life easier.
                            (Whereupon, the document was marked as
                      Defendant’s Exhibit No. D-1 for identification, and
                      was received in evidence.)
January 18, 2013 Hearing, Notes of Testimony (N.T.) at 7-8; R.R. at 117-18a
(emphasis added).
                We conclude that the WCJ was entitled to construe the above-quoted
discussion as a binding stipulation and, in fact, did so at the January 2013 hearing.
It is well established that parties in workers’ compensation matters, “as in all other
civil proceedings, may enter of record a binding stipulation as to the facts of the
case.” Thomas v. Bache, 38 A.2d 551, 556 (Pa. Super. 1944), rev’d on other
grounds, 40 A.2d 495 (Pa. 1945). Where, as here, a stipulation is clear on its face,
a fact finder, including an administrative agency, is required to accept the
stipulated facts as binding. Spencer v. City of Reading Charter Bd., 97 A.3d 834,
843 (Pa. Cmwlth. 2014). Accordingly, notwithstanding the fact that the WCJ
relied upon Claimant’s 2012 testimony in calculating a higher AWW, the parties’
2013 stipulation to the lower figures depicted in Employer’s Exhibit D-1
supersedes his testimony adduced before the stipulation.             See Klinger v.
Workmen’s Comp. Appeal Bd., 413 A.2d 432, 434 (Pa. Cmwlth. 1980) (holding
that, where the parties executed a stipulation of facts, the claimant could not
challenge those facts via testimony presented before the execution of the
stipulation).




                                           4
              In any event, even if we consider Claimant’s testimony in his favor as
the party who prevailed below,8 it is inadequate to support the AWW calculated.
His testimony on direct as to the number of hours that he generally worked was as
follows:9
              A. Depending upon rain and stuff, 40. One week, I think,
              was 24, because we had a lot of – couple rainstorms
              hence why all the material flew out in the field.
              Q. When you were hired, was there any discussion about
              overtime work being expected?
              A. Yeah. You open up the roof, you got to close it. I
              mean, there was a couple days we worked like nine
              hours, ten hours. Nothing major.
Claimant’s July 24, 2012 Deposition at 9; R.R. at 26a.
              As evident from Claimant’s testimony, he never testified that he had a
guaranteed expectation of working forty hours per week. He admitted that his
work was weather dependent and that, due to a rainstorm, he had only worked
twenty-four hours during one of the three weeks that he worked for Employer. His
testimony, therefore, illustrated that his job could be sporadic in nature and that his
hours could vary from week to week. Accordingly, consistent with Burkhart
Refractory Installation v. Workers’ Compensation Appeal Board (Christ), 896
A.2d 9, 12-13 (Pa. Cmwlth. 2006), which addresses situations where an AWW
cannot be calculated pursuant to Section 309(d.2) of the Act, the WCJ should have




    8
      Id. at 244 n.3 (holding that we must review the evidence in the light most favorable to the
party who prevailed before the WCJ).
    9
       Although Claimant also testified that he was paid the prevailing union rate of $30.78 per
hour, there is no support in the record to support that figure.



                                               5
calculated Claimant’s AWW based on his earnings, divided by the number of
weeks in which he actually worked.10
              Moreover, Employer’s calculation is consistent with case law
outlining the proper calculation in analogous circumstances for newly hired
employees. In that regard, the AWW depicted in Employer’s Exhibit. D-1 reflects
the economic reality of Claimant’s pre-injury earnings such that it constitutes a fair
assessment of his “earnings when he was actually working and advances the
humanitarian purpose of the Act.” Anderson v. Workers’ Comp. Appeal Bd. (F.O.
Transp.), 111 A.3d 238, 245 (Pa. Cmwlth. 2015) (quoting Burkhart, 896 A.2d at
13).     As Employer notes, its actual payroll records for the three weeks that
Claimant worked indicate eighteen hours, twenty-one hours and twenty-four hours.
January 18, 2013 Hearing, Employer’s Exhibit D-1 at 1; R.R. at 122a.
Accordingly, mindful that the colloquy at issue reflects that Claimant’s counsel
agreed to Employer’s exhibit, that Claimant’s testimony does not support the
AWW as rendered and that the WCJ never gave a reason for rejecting the
stipulation, we conclude that the WCJ should have accepted the figures set forth in
Employer’s Exhibit No. D-1 in calculating Claimant’s AWW.
              Accordingly, we affirm the Board’s order granting Claimant’s claim
and penalty petitions, but reverse to the extent that the Board erred in affirming the
calculation of the AWW. This matter is remanded for modification of Claimant’s




    10
       Pursuant to Employer’s statement of wages, Claimant’s total earnings were $1487.37.
Total earnings divided by three, the number of weeks that he worked, equals $495.79 per week.
Accordingly, Claimant’s AWW should be $495.79, with a corresponding compensation rate of
$429.



                                             6
benefits, including the awarded penalty, to reflect an AWW of $495.79 and a
corresponding compensation rate of $429.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge




                                        7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pravco, Inc. and New Jersey                    :
Manufacturers Insurance Company,               :
                         Petitioners           :
                                               :
                      v.                       :     No. 197 C.D. 2015
                                               :
Workers’ Compensation Appeal                   :
Board (Marshall),                              :
                      Respondent               :


                                       ORDER


                AND NOW, this 18th day of December, 2015, the order of the
Workers’ Compensation Appeal Board granting Claimant’s claim and penalty
petitions is hereby AFFIRMED. Further, to the extent that the Board erred in
affirming the WCJ’s calculation of Claimant’s average weekly wage, we
REVERSE and REMAND this matter to the Board with instructions for further
remand to the WCJ to modify Claimant’s benefits, including the awarded penalty,
to reflect an average weekly wage of $495.79 and a corresponding compensation
rate of $429.
                Jurisdiction relinquished.




                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Judge
