Francis X. Wickersham

The Commonwealth Court reversed a decision by the Workers’ Compensation Appeal Board, reinstating a judge’s ruling that reduced a claimant’s average weekly wage and benefit rate due to an improper bonus calculation. The claimant challenged the recalculation but failed to properly preserve his appeal. The court found that his Notice of Appeal lacked specificity and that he waived all related issues by failing to raise them in a timely manner, leading to the reinstatement of the lower benefit rate.

Following the claimant’s work injury to his low back on May 22, 2020, the employer paid him benefits at the rate of $725.77 per week, based on an average weekly wage of $1,088.66. In May 2022, the employer filed a Review Petition, alleging the average weekly wage was incorrect since one quarter included a bonus payment, which should have been prorated annually. 

The claimant also filed a Penalty Petitions and a Petition to Reinstate Benefits. The workers’ compensation judge granted the employer’s Review Petition, finding that the claimant’s average weekly wage was $1,030.33, thereby reducing the claimant’s benefit rate to $686.89 per week. The judge further found that the employer could recoup the overpayments by withholding $20.00 per week from the corrected compensation payments, with the overpayment to be offset by the amount of penalties and interest owed by the employer. The judge said that if any amount of overpayment was due after that offset, the employer was entitled to recoup overpayments of up to $20.00 per week, until fully recovered. 

The claimant appealed to the Appeal Board. In doing so, he filed a benign, non-specific Notice of Appeal. Additionally, the claimant failed to timely file his Brief with the Board. The claimant made multiple requests to file a Brief, which were each denied, based on his failure to show sufficient extenuating circumstances. 

Nevertheless, the Board reversed the judge’s decision. According to the Board, an objection made by the claimant to a revised Statement of Wages that could not be corroborated was improperly overruled by the judge. 

The employer appealed to the Commonwealth Court, arguing that the claimant’s Notice of Appeal was insufficient to provide notice to the Board and the employer of the appealable issues. The Commonwealth Court agreed with the employer’s argument and reversed the Board. 

According to the court, the claimant did not file an appeal with the Board that challenged the judge’s Finding of Fact on his average weekly wage. Although the claimant claimed he did not waive this issue on appeal because he raised it at oral argument, the court said that 34 Pa. Code §111.11(a)(2) does not permit an appellant to wait until oral argument to identify the relevant issue or issues. The court, therefore, held that the claimant waived all issues related to the judge’s decision, including the reduction of his average weekly wage. 

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