       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard Robinson,                    :
                                     :
                    Petitioner       :
                                     :
           v.                        :   No. 2527 C.D. 2015
                                     :   Submitted: November 4, 2016
Workers’ Compensation Appeal         :
Board (Holloman Corporation),        :
                                     :
                    Respondent       :
Holloman Corporation,                :
                                     :
                    Petitioner       :
                                     :
           v.                        :   No. 2540 C.D. 2015
                                     :   Submitted: November 4, 2016
Workers’ Compensation Appeal         :
Board (Robinson),                    :
                                     :
                    Respondent       :

BEFORE:    HONORABLE RENÉE COHN JUBELIRER, Judge
           HONORABLE PATRICIA A. McCULLOUGH, Judge
           HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                               FILED: January 13, 2017

           These consolidated matters are cross-petitions for review filed by
Richard Robinson (Claimant) and Holloman Corporation (Employer) appealing an
order of the Workers’ Compensation Appeal Board (Board) that modified and
affirmed a decision and order of a Workers’ Compensation Judge (WCJ) that
granted both Claimant’s review petition and Employer’s petition to modify or
suspend compensation benefits. For the reasons set forth below, we affirm.
                 Claimant, a Florida resident, was hired by Employer on June 9, 2011,
to work as a skilled laborer on gas pipeline construction in Pennsylvania at a rate
of pay of $16.00 per hour plus an $85 per diem for each workday. (WCJ Decision
Findings of Fact (F.F.) ¶¶4b, 4f, 5b, 11, 12.) On June 18, 2011, less than 10 days
after he started work, Claimant injured his left knee when he slipped and fell while
working for Employer. (WCJ Decision F.F. ¶1.) Claimant returned to light duty
work at no earnings loss after this accident and Employer issued a medical-only
Notice of Compensation Payable (NCP) describing the work injury as a left knee
sprain. (WCJ Ex. 1, NCP; Employer Ex. B, Brannon Dep. at 10, Reproduced
Record (R.R.) at 138a; Employer Ex. E, Pay Records, R.R. at 163a-165a.)
                 On August 31, 2011, Claimant stopped working and returned to his
family in Florida. (WCJ Decision F.F. ¶¶5f, 12; 8/6/12 Hearing Transcript (H.T.)
at 22-26, R.R. at 31a-35a.) On November 2, 2011, Employer issued a Notice of
Temporary Compensation Payable (NTCP) that described Claimant’s work injury
as a left knee meniscus tear. (WCJ Decision F.F. ¶1; WCJ Ex. 1, NTCP, R.R. at
1a.) Under this NTCP, which later converted to an NCP by operation of law,
Employer paid Claimant total disability benefits under the Workers’ Compensation
Act1 based on an average weekly wage of $1,225.00. (WCJ Decision F.F. ¶1; WCJ
Ex. 1, NTCP, R.R. at 1a.)
                 On March 5, 2012, Claimant’s physician released him to return to
full-time work with restrictions. (WCJ Decision F.F. ¶7; Joint Ex. 1, Stipulation,


1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.


                                                 2
R.R. at 179a.) On March 21, 2012, Employer sent Claimant a letter offering him a
full-time, 10-hour per day, five-day a week position within those medical
restrictions at Claimant’s pre-injury hourly rate of pay and asking him to report to
work on April 1, 2012. (WCJ Decision F.F. ¶¶5g, 12, 16; 3/21/12 Letter, attached
as exhibit to Employer Ex. B.) Claimant did not return to work in response to this
offer and on May 8, 2012, Employer filed a petition to modify or suspend
Claimant’s disability benefits on the ground that Claimant was offered and refused
a job within his work restrictions. (WCJ Decision F.F. ¶¶2, 5g, 12.)
                 On May 10, 2012, following communication with Claimant’s counsel,
Employer sent Claimant another letter again offering him this full-time, light-duty
position, making clear that Claimant would be paid his pre-injury rate of pay of
$16.00 per hour plus an $85.00 per diem for each workday. (WCJ Decision F.F.
¶¶5h, 12; 5/10/12 Letter, attached as exhibit to Employer Ex. B.)                  Claimant
accepted this position and returned to work on June 18, 2012, and Employer filed a
notification of suspension, pursuant to Section 413(c) of the Act2 suspending
Claimant’s benefits effective June 18, 2012 on the ground that he had returned to
work on that date with no loss of earnings. (WCJ Decision F.F. ¶¶3, 4g, 5h, 11,
12; Notification of Suspension, R.R. at 8a.) Claimant filed a challenge to the
suspension, which he amended to a review petition seeking a correction in the
amount of his average weekly wage. (WCJ Decision F.F. ¶ 3.)
                 The WCJ held evidentiary hearings on August 6, 2012 and September
24, 2012, at which Claimant testified, and also received deposition testimony of
Employer’s safety manager and office manager and a stipulation of the parties
concerning the testimony of Claimant’s treating physician.                     Claimant and

2
    Added by the Act of July 1, 1978, P.L. 692, as amended, 77 P.S. § 774.2.


                                                 3
Employer’s witnesses testified and Employer’s pay records showed that Claimant
worked approximately 10 hours per day, six days a week in 2011 before and after
the injury, that Claimant worked 10 hours per day, five days a week after he
returned to work in June 2012, and that in both years Claimant was paid time and
one-half for hours over 40 hours per week. (8/6/12 H.T. at 11, 13, 33, R.R. at 20a,
22a, 42a; Employer Ex. B, Brannon Dep. at 9-10, 23-24, R.R. at 137a-138a, 151a-
152a; Employer Ex. A, Rosenberg Dep. at 18, R.R. at 122a; Employer Ex. E, Pay
Records, R.R. at 163a-167a.) Claimant testified that it was his understanding when
he was hired that he would be working 10 or more hours a day, six days a week.
(8/6/12 H.T. at 10-11, R.R. at 19a-20a.) Employer’s witnesses testified that when
Claimant was hired he was not guaranteed a specific number of hours and that the
number of hours that a skilled laborer works varies with the needs of the project on
which he is working.      (Employer Ex. B, Brannon Dep. at 9, R.R. at 137a;
Employer Ex. A, Rosenberg Dep. at 10, 12-15, R.R. at 114a, 116a-119a.)
Claimant admitted that he is fully capable of performing the light duty job to which
he returned in June 2012. (8/6/12 H.T. at 13, 31-32, R.R. at 22a, 40a-41a.)
            On August 24, 2012, after the hearings before the WCJ had begun,
Claimant left work and returned to Florida because his mother was seriously ill.
(WCJ Decision F.F. ¶¶4n, 11; 9/24/12 H.T. at 10-12, 18-21, 32, R.R. at 61a-63a,
69a-72a, 83a; Employer Ex. D, Claimant 2012 Work Schedule, R.R. at 162a.)
Claimant did not return to work and decided that he would not return to work for
Employer in Pennsylvania, even after his mother’s health improved.            (WCJ
Decision F.F. ¶¶4o, 5i, 11, 12; 9/24/12 H.T. at 32-36, 41-43, R.R. at 83a-87a, 92a-
94a; Employer Ex. B, Brannon Dep. at 17-18, R.R. at 145a-146a.) In Florida,
Claimant worked for the lawn care business that he and his wife had started, but


                                         4
did not draw a paycheck for that work because “[t]hat’s what you do when you try
to build a company.” (9/24/12 H.T. at 13-14, 37, 41-42, R.R. at 64a-65a, 88a, 92a-
93a.) At the hearing before the WCJ on September 24, 2012, Claimant testified
that he did not want to come back to Pennsylvania and had no intention of
returning to his job with Employer. (Id. at 42, R.R. at 93a.) On September 26,
2012, Employer terminated Claimant’s employment for failure to return to work
and communicate with Employer on when he would return.            (Employer Ex. F,
Termination Letter, R.R. at 168a; Employer Ex. B, Brannon Dep. at 17-20, R.R. at
145a-148a.)
              On August 25, 2014, the WCJ issued a decision amending Claimant’s
average weekly wage to $1,630.00, reducing Claimant’s benefits from April 1,
2012 on to partial disability benefits of $216.67 per week, and suspending
Claimant’s benefits as of September 26, 2012. (WCJ Decision Conclusions of
Law (C.L.) ¶¶1-3 & Order.) The WCJ found Employer’s witnesses credible and
found Claimant credible except for his testimony that Employer’s March 2012 job
offer was not within his work restrictions.         (Id. F.F. ¶¶11-12.)   Based on
Claimant’s testimony and the evidence of the actual hours that Claimant worked in
2011, the WCJ found that Claimant was expected to work a six-day, 60-hour week
at the time of his injury.    (Id. F.F. ¶¶13-14.)    The WCJ found that because
Claimant’s hourly wage was $16.00, with time and one-half for hours above 40
hours per week plus six $85.00 per diems, Claimant’s average weekly wage was
$1,630.00 and his total disability benefit was $858.00 per week. (Id. F.F. ¶15, C.L.
¶1 & Order.) The WCJ found that Employer had offered Claimant work within his
medical limitations as of April 1, 2012 at the same hourly wage and per diem rate
and that Claimant had failed to follow through in good faith on that job offer. (Id.


                                         5
F.F. ¶¶16-17.) The WCJ concluded, however, that because the job offered by
Employer as of April 1, 2012 and to which Claimant returned on June 18, 2012
was for 50 hours per week with a five-day work week, Claimant’s earning power
in that position was $1,305.00 per week, and held that Employer was entitled only
to a modification of Claimant’s benefits to a partial disability rate of $216.67 per
week as of April 1, 2012, based on the earnings difference between Claimant’s pre-
injury job and the 2012 position. (Id. F.F. ¶¶15-16, C.L. ¶¶1-2 & Order.) The
WCJ also found that Claimant abandoned his employment and that Employer
discharged him for good cause and held that Employer was therefore entitled to a
suspension of benefits as of September 26, 2012 because Claimant’s loss of
earnings after the termination of his employment was not due to his work injury.
(Id. F.F. ¶18, C.L. ¶3 & Order.)
            Both Employer and Claimant timely appealed the WCJ’s decision to
the Board. On November 6, 2015, the Board issued a decision that modified the
date of suspension of Claimant’s benefits, but otherwise affirmed the WCJ’s
decision. The Board concluded that the WCJ’s determination that Claimant’s
average weekly wage was $1,630.00 was supported by substantial evidence.
(Board Op. at 3-5.) The Board also affirmed the WCJ’s ruling that Employer was
entitled to a suspension because Claimant’s employment ended for reasons
unrelated to his injury. (Id. at 5-8.) The Board, however, held that the date when
Claimant’s loss of earnings was no longer related to his injury was the date that he
left his job for personal reasons, rather than the date his employment was




                                         6
terminated, and, accordingly modified the WCJ’s order to suspend Claimant’s
benefits as of August 24, 2012. (Id.) These appeals followed.3
             Claimant argues that his leaving of his modified duty job cannot
constitute grounds for the suspension of his partial disability benefits because his
reason for leaving did not involve culpable conduct and because he had not
returned to full-duty work at his pre-injury earnings. We do not agree.
             Where a suspension of benefits is based on the termination of the
claimant’s employment, the issue is not whether the claimant’s conduct is
blameworthy or reasonable, but whether his loss of earnings is due to factors other
than his work injury.          Hertz-Penske Truck Leasing Co. v. Workmen’s
Compensation Appeal Board (Bowers), 684 A.2d 547, 549 (Pa. 1996); Harle v.
Workmen’s Compensation Appeal Board (Telegraph Press, Inc.), 658 A.2d 766,
769-70 (Pa. 1995); North Pittsburgh Drywall Co. v. Workers’ Compensation
Appeal Board (Owen), 59 A.3d 30, 39-41 (Pa. Cmwlth. 2013).

             It is well-settled that the legislative intent behind the Act is
             simply to provide compensation to employees who suffer
             work-related injuries. It is equally well-settled that the Act
             was not intended as a remedy where a claimant’s “loss [in
             earnings] is due to factors other than such injury.” Unlike the
             Pennsylvania Unemployment Compensation Act [Act of
             December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as
             amended, 43 P.S. §§ 751-918.10], the Act here contains no
             language whatsoever indicating that a showing of fault on the
             part of a claimant must be made in order to suspend that
             claimant’s benefits.


3
  Our review is limited to determining whether an error of law was committed, whether the
WCJ’s necessary findings of fact are supported by substantial evidence, and whether
constitutional rights were violated. North Pittsburgh Drywall Co. v. Workers’ Compensation
Appeal Board (Owen), 59 A.3d 30, 36 n.8 (Pa. Cmwlth. 2013).


                                            7
Hertz-Penske Truck Leasing Co., 684 A.2d at 549 (footnote and citations omitted)
(quoting Harle).
             Where a claimant leaves a post-injury job that he is fully capable of
performing for personal reasons, his loss of earnings is not related to his injury and
he is not entitled to benefits, even where his reasons for quitting work involve no
fault, bad faith or culpable conduct. Hertz-Penske Truck Leasing Co., 684 A.2d at
549 (noting that “an employer can suspend worker’s compensation benefits when
an employee quits voluntarily” because the loss of earnings was caused by the
voluntary decision to abandon the employment, not by the injury); North
Pittsburgh Drywall Co., 59 A.3d at 41 (fact that claimant’s reason for quitting
post-injury job was lack of transportation was not grounds for denying suspension
of benefits); Beattie v. Workers’ Compensation Appeal Board (Liberty Mutual
Insurance Co.), 713 A.2d 187, 188-89 (Pa. Cmwlth. 1998) (denying reinstatement
of benefits where claimant had obtained a post-injury job with a different
employer, but quit that job because of stress unrelated to his injury); Campbell v.
Workers’ Compensation Appeal Board (Foamex), 707 A.2d 1188, 1191 (Pa.
Cmwlth. 1998) (denying reinstatement of benefits where claimant’s reason for
leaving post-injury job was loss of transportation). If the claimant, rather than the
employer, is the one who terminated the employment relationship, the burden is on
the claimant to show that he left work due to his disability. Beattie, 713 A.2d at
188; Kunigonis v. H.P. Foley, Inc., 367 A.2d 763, 767 (Pa. Cmwlth. 1977). Here,
it was Claimant who chose to end his employment with Employer. Although
Employer terminated Claimant’s employment on September 26, 2012, that
termination did not occur until after Claimant acknowledged that he had
permanently left his job and would not return.


                                          8
             Claimant admitted that he was able to perform his light duty job, and
testified that he left work on August 24, 2012 for personal reasons unrelated to his
injury or his job. (8/6/12 H.T. at 13, 31-32, R.R. at 22a, 40a-41a; 9/24/12 H.T. at
10-12, 21, 41-42, R.R. at 61a-63a, 72a, 92a-93a.) Moreover, Claimant admitted
that he had chosen not to return to work after his personal emergency had ended,
not because of his injury, but because he did not like his job and did not want to
return to Pennsylvania. (9/24/12 H.T. at 41-42, R.R. at 92a-93a.) Claimant’s loss
of earnings was therefore due to factors other than his injury, and a suspension of
benefits is proper even if there was no misconduct or bad faith by Claimant in his
reasons for leaving his job.
             The fact that the WCJ found that Claimant was entitled to partial
disability benefits does not change this. Claimant is correct that partial disability
benefits usually are not suspended where a claimant who is being paid only
reduced wages as a result of the injury is discharged or is unable to continue to
work for the employer because there is usually still a partial earnings loss caused
by the work injury.        See, e.g., Vista International Hotel v. Workmen’s
Compensation Appeal Board (Daniels), 742 A.2d 649, 658 (Pa. 1999) (“a claimant
who has established a partial disability due to a work-related injury should
generally continue to receive partial disability benefits by virtue of his loss in
earnings capacity, even though subsequently discharged from employment”)
(emphasis added); North Pittsburgh Drywall Company, Inc., 59 A.3d at 42
(claimant’s lack of transportation prevented him from continuing to work for
employer); Howze v. Workmen’s Compensation Appeal Board (General Electric
Co.), 714 A.2d 1140, 1142 (Pa. Cmwlth. 1998) (claimant was discharged by
employer). Those cases, however, do not hold that a claimant is automatically


                                         9
entitled to continued benefits where he abandons a full-time post-injury job
provided by the employer at his pre-injury rate of pay simply because he no longer
wishes to work for the employer or at the employer’s location. In all cases, the
critical issue is whether the loss of earnings and earning power is due to factors
other than the work injury.    Hertz-Penske Truck Leasing Co., 684 A.2d at 549;
Harle, 658 A.2d 769-70. Thus, even where the claimant has not returned to his
pre-injury job and pre-injury earnings, partial disability benefits are properly
denied where the loss of earnings is due to the claimant’s voluntary decision not to
work for his employer rather than to the injury.         See Brimmer v. Workers’
Compensation Appeal Board (North American Refractories), 764 A.2d 104, 105-
08 (Pa. Cmwlth. 2000). (claimant who returned to work with a wage loss was not
entitled to partial disability benefits for period when he chose to take time off for
vacation).
             Here, Claimant chose not to return to Pennsylvania to work for
Employer, even when there was nothing that made him unable to return to work,
and he stayed in Florida and worked instead on his family’s start-up lawn care
company. (9/24/12 H.T. at 37, 41-42, R.R. at 88a, 92a-93a.) Moreover, although
Claimant had a wage loss while he worked for Employer in 2012, that was not due
to a limitation on the hours that he was capable of working or a lesser rate of pay;
the position that Claimant chose to abandon was a more than full-time position at
his pre-injury rate of pay. (WCJ Decision F.F. ¶16; 8/6/12 H.T. at 13-14, R.R. at
22a-23a.) Rather, the difference in wages was due to the high hours of work
available in his pre-injury job with Employer, an earning capacity which required
that Claimant be willing to work in Pennsylvania, a condition that Claimant was no
longer willing to satisfy. Allowing a claimant to collect partial disability benefits


                                         10
where he is no longer willing to work for an employer that has provided full-time
work at his pre-injury rate of pay would not compensate for loss of earning
capacity; it would subsidize his voluntary decision to change jobs or not work at
all.
                 Employer, in its cross-appeal, challenges the WCJ’s modification of
Claimant’s average weekly wage and the award of partial disability benefits from
April 1, 2012 to August 24, 2012 based on that average weekly wage. Where, as
here, a claimant who is paid based on hours worked has worked less than 13 weeks
at the time of his injury, the calculation of his average weekly wage is governed by
Subsection 309(d.2) of the Act.4 Lenzi v. Workers’ Compensation Appeal Board
(Paving), 29 A.3d 891, 894 n.8 (Pa. Cmwlth. 2011); Lahr Mechanical v. Workers’
Compensation Appeal Board (Floyd), 933 A.2d 1095, 1099 (Pa. Cmwlth. 2007).
Subsection 309(d.2) provides:

                 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.
77 P.S. § 582(d.2). Claimant’s hourly wage rate and the number of hours that he
was expected to work per week are questions of fact, and the WCJ’s findings on
those issues must be upheld if supported by substantial evidence.                              Lahr
Mechanical, 933 A.2d at 1101-02.
                 Employer argues that the WCJ’s finding that Claimant was expected
to work 60 hours per week is not supported by substantial evidence. We disagree.
Not only did Claimant testify that he understood that he would be working 10

4
    Added by the Act of June 24, 1996, P.L. 350, No. 57, §5, as amended, 77 P.S. § 582(d.2).


                                                11
hours per day, six days a week, but Employer’s pay records showed that he in fact
worked that schedule both before the accident and in the period after the accident
that he worked in 2011. (8/6/12 H.T. at 10-11, R.R. at 19a-20a; Employer Ex. E,
Pay Records, R.R. at 163a-165a.) Evidence of the hours that the claimant actually
worked per week after assuming his regular job duties is sufficient to support a
determination of the hours that the claimant was expected to work.             Lahr
Mechanical, 933 A.2d at 1101-02 (WCJ finding that 58.5 expected hours of work
per week was supported by substantial evidence where employer’s records showed
that claimant worked 58.5 hours in his last week of work before the injury).
            The fact that Employer’s witnesses testified credibly that there was no
“guarantee” that Claimant would work a particular number of hours (Employer Ex.
B, Brannon Dep. at 9, R.R. at 137a; Employer Ex. A, Rosenberg Dep. at 10, 12-15,
R.R. at 114a, 116a-119a) does not conflict with the WCJ’s finding that it was
expected that Claimant would work a six-day, 60-hour work week. The absence of
a guarantee of a particular amount of work does not preclude the conclusion that
the parties had an expectation as to the likely amount of work per week that
Claimant would be performing. Although Employer contended that the amount of
work could change, there was no evidence that the work week for Claimant’s pre-
injury job fluctuated from week to week or that the 10 hours per day, six days a
week that Claimant worked before his injury was temporary or atypical for his job.
            Moreover, the WCJ’s calculation of Claimant’s average weekly wage
would be valid even if no expected number of work hours could be determined.
Where the employer’s work schedule is too variable to permit a determination of
the claimant’s expected weekly work hours, average weekly wage is calculated
based on the claimant’s recent pre-injury earning experience.          Anderson v.


                                        12
Workers’ Compensation Appeal Board (F.O. Transport), 111 A.3d 238, 244-45
(Pa. Cmwlth. 2015) (where hourly rate and expected hours per week required for
calculation under Section 309(d.2) do not exist, average weekly wage should be
calculated by an alternative method that will “reasonably reflect the economic
reality of a claimant’s recent pre-injury earning experience, with some benefit of
the doubt to be afforded to the claimant in the assessment”) (quoting Triangle
Building Center v. Workers’ Compensation Appeal Board (Linch), 746 A.2d 1108
(Pa. 2000)). The WCJ’s calculation of Claimant’s average weekly wage based on
his hourly wages multiplied by his 60-hour, six day pre-injury work week is
therefore the same calculation that would be required if no expected weekly hours
could be determined.
            For the foregoing reasons, we conclude that the Board did not err in
ruling that Claimant’s benefits were suspended as of August 24, 2012 and in
affirming the WCJ’s granting of Claimant’s petition to review compensation
benefits. We therefore affirm the order of the Board.




                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                        13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard Robinson,                    :
                                     :
                    Petitioner       :
                                     :
           v.                        :   No. 2527 C.D. 2015
                                     :
Workers’ Compensation Appeal         :
Board (Holloman Corporation),        :
                                     :
                    Respondent       :
Holloman Corporation,                :
                                     :
                    Petitioner       :
                                     :
           v.                        :   No. 2540 C.D. 2015
                                     :
Workers’ Compensation Appeal         :
Board (Robinson),                    :
                                     :
                    Respondent       :



                                 ORDER

           AND NOW, this 13th day of January, 2017, the order of the Workers’
Compensation Appeal Board (Board) in the above matter is AFFIRMED.




                                  ____________________________________
                                  JAMES GARDNER COLINS, Senior Judge
