IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Archie Lidey III, : Petitioner :

: v. : No. 726 C.D. 2016
: Submitted: December 2, 2016 Workers ’ Compensation Appeal : Board (Tropical Amusements, Inc.), : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE BROBSON FILED: March 17, 2017

Petitioner Archie Lidey III (Claimant) petitions for review of an order of the Workers’ Co mpensation Appeal Board (Board). The Board affirmed, as modified, the decision of a Workers’ Compensation Judge (WCJ), granting Claimant’s petition to review compensation benefits. We now reverse

.

Claimant sustained an injury in the nature of a right arm fracture/crush injury while in the course and scope of his employment with Tropical Amusements, Inc. (Employer) on August 4, 2013. (Reproduced Record (R.R.)

at 98 a.) Employer accepted liability for Claimant’s work

- related injury pursuant to
a Notice of Compensation Payable, dated August 12, 2013. ( Id. at 98 a

- 99 a.) The Notice of Compensation Payable and accompanying Statement of Wages reflected an average weekly wage (AWW) of $640.00
, and a weekly compensation rate of $458.50. ( Id. at 94a, 98a .) Th ereafter, on September 15, 2014, Claimant filed a2

petition to review compensation benefits, alleging that Employer had improperly calculated his AWW and weekly compensation rate. ( Id. at 1a

- 4a.)

Before the WCJ, Claimant testified that on August 4, 2013, he was assembling a carnival ride at the Greene County Fair, when the ride malfunctioned, causing the car/trolley to come down onto his right arm and pin his right arm between the ride’s main support/tower and the car/trolley. (Supplemental Reproduc ed Record (Supp. R.R.) at 13b.) Claimant initially treated for his
work

- related injury at Ruby Memorial Hospital in Morgantown, West Virginia, where he underwent five or six surgeries on his right arm over a period of approximately ten to twelve days and was treated in the intensive care unit

. ( Id. at 20b

- 21b.) Since that time, Claimant has undergone two additional surgeries on his right arm . ( Id. at 21b.) Claimant explained that he continues to treat for his
work

- related injury and that his doctors wo uld like to per form additional surgeries,
but he was currently being given some time to return to as much normal activity as possible for psychological reasons. ( Id. )

A t the time of his August 4, 2013 work

- related injury , Claimant was working as a manager/fabricator for Employer, a family

- owned business that provides amusement rides to fairs and carnivals . ( Id. at 12b, 15b , 25b .) In this position , Claimant was responsible for Employer’s day

- to

- day operations, contract negotiations, represent ing Employer at conventions and trade shows , buying and selling equipment , and assembling, disassembling , and repairing rides

. ( Id. at 15b

- 16b , 25b

- 26b .) Claimant explained that he took on the management
duties in addition to his regular fabricator dutie s in the winter of 2012/ 2013 after his grandfather passed away. ( Id. at 15b, 26b

- 27b.) Before that time, Claimant had been learning the management duties from his grandfather since approximately3

2008 or 2009 . ( Id. at 15b, 29b. ) Claimant testified furth er that in 2012, he was paid $1,000.00 per week from the first week in June through the last week of September. ( Id. at 17b.) Claimant explained that in 2013, his weekly wages were increased from $1,000.00 to $2,000.00 in connection with his additional

m anagement duties . ( Id. at 18b

- 19b.) Claimant explained further that prior

to 2013, his employment duties stopped when the carnival season ended in September . ( Id. at 19b.) A fter he took on the additional management duties, however, he was required to work through the winter months , attending conventions and trade shows, performing contract negotiations, buying and selling rides, and finding the best deals on ride parts . ( Id. ) Claimant testified that a s a result of these wintertime employment duties, his weekly wages of $2,000.00 were supposed to continue beyond the 2013 carnival season. ( Id. at 19b

- 20b.) Claimant
stated further that had he not been injured, he would have expected his weekly pay to continue through the end of 2013 and into 2014. ( Id

. at 20b.) Claimant returned
to work for Employer in a light

- duty capacity in June 2014 , performing tasks such

as “catch drops” and monitoring ticket booths. ( Id. at 21b

- 22b.) Claimant continues to work for Employer in a light

- duty capacity and is able to perform
additional duties as the condition of his arm improves. ( Id. at 22b.)

Employer presented the testimony of Rebecca Lidey, Employer’s president and Claimant’s mother. ( Id. at 39b, 41b.) Ms. Lidey testified that Employer is in the business of providing amusement rides for Pennsylvania carnivals from May through September of each year

. ( Id. at 40b

- 41b.) Employer
has a summertime office located in Scottsdale, Pennsylvania , where i t stores its equipment during the winter months , and a wintertime office located in Riverview,
Florida , where it is incorporated . ( Id. at 40b

- 41b .) Ms. Lidey confirmed that4

Claimant worked for Employer as a fabricator in 2012 , and Employer paid
Claimant $1,000.00 per week. ( Id. at 41b

- 42b.) Ms. Lidey als o confirmed that Claimant took over some administrative duties after his grandfather passed away
in 2012. ( Id. at 42b.) Ms. Lidey explained, however, that Claimant was not paid to attend conventions on behalf of Employer during the winter months and

rece ived money only when he sold equipment for Employer. ( Id. at 42b

- 43b.) Ms. Lidey stated that Claimant was “just helping the [family] business” by attending the se conventions and performing other duties in the wintertime. ( Id. at 44b

- 45b.) Ms. Lidey also admitted that Claimant was paid $2,000.00 per week beginning in 2013. ( Id. at 45b.) Ms. Lidey explained , however, that while
she and Claimant had discussed the possibility of Claimant receiving $2,000.00 per week during the entire year, Employer ha d not agreed to that arrangement prior to Claimant’s August 4, 2013 work

- related injury. ( Id. at 43b.) Ms. Lidey testified further that no employee received any wages during the winter months at the time of Claimant’s August 4, 2013 work

- related injury, but that this changed in 2014 , when Employer began paying Archie Lidey, Jr. and Claimant throughout the
winter months . ( Id. at 46b

- 47b.)

On June 26, 2015 , the WCJ issued a decision, granting Claimant’s petition to review compensation benefits. 1 In so d oing, the WCJ concluded: (1) Employer improperly calculated Claimant’s time of injury AWW as a seasonal

1 On July 6, 2015, the WCJ issued an amended decision for the purpose of ordering and directing Employer to reimburse Claimant’s counsel for all reasonable and necessary litigation costs. The WCJ reaffirmed his prior June 26, 201 5 decision in all other respects. ( See R.R. at 20a

- 24a.)5

employee under Section 309(e) of the Workers’ Compensation Act (Act) ; 2 and (2) pursuant to Section 309(a) of the Act, 3 Claimant’s time of injury AWW wa s $2,000.00, which resulted in a weekly compensation rate of $917.00.

Employer appealed to the Board, arguing that the WCJ erred in concluding that Claimant was improperly classified as a seasonal employee, that Employer had improperly calculated Claima nt’s AWW, and that Claimant’s correct AWW was $2,000.00. By decision dated April 13, 2016, t he Board affirmed the WCJ’s decision granting Claimant’s petition to review compensation benefits, but modified Claimant’s AWW to $717.95. In so doing, the Board determined: (1) the WCJ properly concluded that Claimant was not a seasonal employee ; (2) t he WCJ’s calculation of Claimant’s AWW under Section 309(a) of the Act “artificially inflated Claimant’s compensation rate in comparison to his

pre

- injury earning experience;” and (3) the WCJ should have utilized
Section 309(d) of the Act to calculate Clai mant’s AWW because it “is a more accurate reflection of Claimant’s economic reality.” (Board’s Op. at 6

- 7.) Claimant then petitioned this Court for review.

On appeal, 4 Claimant argues that the Board committed an error of law when it applied Section 309 (d) of the Act and modified his AWW to $717.95. More specifically, Claimant argues that by applying Section 309(d) of the Act, the

2 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. § 582 (e)

. 3 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. § 582(a).

4 This Court’s standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative A gency Law, 2 Pa. C.S. § 704.6

Board ignored the clear and unambiguous language of both Section 309(a) and
Section 309(d) of the Act because Section 309(d) should have been utilized to
calculate his AWW only if Section s 309(a), 309 (b), or 309 (c) did not apply. In

s upport of his position, Claimant argues further that the uncontradicted and credible testimony of both Claimant and Ms. Lidey 5 established that a t the time of Claimant’s August 4, 2013 work

- related injury, Claimant’s wages were fixed by the week at $2,000.00, and, therefore, Section 309(a) of the Act should have been
utilized to calculate his AWW.

In response, Employer argues that the Board prope rly applied
Section 309(d) of the Act and modified Claimant’s AWW to $717.95
, because Claimant’s pre

- injury w ages were not fixed by the week

— i.e. , Claimant was continuously employed by Employer for the fifty

- two weeks prior to his August 4, 2013 work

- related injury, but he was only paid by the week during the
carnival season and he performed various administrative duties in the winter months without pay.

Section 309 of the Act 6 provides in pertinent part: Wherever in this article the term “wages” is used, it shall be construed to mean the [AWW] of the employe, ascertained as follows:
(a) If at the time of the injury the wages are fixed by the week, the amount so fixed shall be the [AWW];

5 While the WCJ did not make any specific credibility determinations, the Board properly noted that based upon a fair reading of the WCJ’s decision, it was apparent that the WCJ treated all of the testimony presented as credibl e. See Lewistown Hosp. v. Workmen’s Comp. Appeal Bd. (Kuhns) , 683 A.2d 702, 706 (Pa. Cmwlth. 1996).

6 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. § 582.7 (b) If at the time of the injury the wages are fi xed by the month, the [AWW] shall be the monthly wage so fixed multiplied by twelve and divided by fifty

- two; (c) If at the time of the injury the wages are fixed by the year, the [AWW] shall be the yearly wage so fixed divided by fifty

- two; (d) If at th e time of the injury the wages are fixed by any
manner no t enumerated in clause (a), (b) or (c), the [AWW] shall be calculated by dividing by thirteen the total wages earned in the employ of the employer in each of the highest three of the last four consec utive periods of thirteen calendar weeks in the fifty

- two weeks immediately preceding the injury and by averaging the total amounts earned during these three periods. (Emphasis added.)

Our Supreme Court had the opportunity to interpret Section 309 of th e Act in Lancaster General Hospital v. Workers’ Compensation Appeal Board (Weber

- Brown) , 47 A.3d 831 (Pa. 2012). Applying principl e s of statutory construction, the Supreme Court explained that “Section 309 of the Act calculates a claimant’s [AWW] by first examining how that claimant earned his or her wages

‘ at the time of the injury .’” Lancaster Gen. Hosp. , 47 A.3d at 836 (emphasis added). The Supreme Court explained further that Sections 309(a), 309(b),
and 309(c) of the Act “provide fairly straightforw ard methods for calculating the [AWW] of employees whose wages are fixed by the week, month, or year, respectively,” whereas Section 309(d) “address[es] those employees who earned their wages by the hour.” Id. at 839. Thus, Section 309(d) of the Act shou ld only be utilized to calculate the AWW of claimants who are paid by the hour.

Here, the testimony of both Claimant and Ms. Lidey established that on August 4, 2013, at the time of Claimant’s work

- related injury, Claimant’s wages were fixed by the week at $2,000.00

. Contrary to Employer’s arguments, it8

is irrelevant that Claimant was continuously employed by Employer for the fifty

- two weeks prior to his August 4, 2013 work

- related injury or that he was not paid by Employer during the winter months , bec ause Claimant’s AWW must be
calculated based on h ow he earned his wages on the date of his injury , not at some other point during his employment with Employer

. In addition, there is no
evidence in the record to suggest that Claimant was paid by the hour a t the time of his August 4, 2013 work

- related injury. B ecause Claimant’s wages were fixed by the week and he was not paid on an hourly basis at the time of his August 4, 2013
work

- related injury , Claimant’s AWW must be calculated pursuant to
Section 309(a ) of the Act. For these reasons, we must conclude that the Board committed an error of law when it applied Section 309(d) of the Act and modified Claimant’s AWW from $2,000.00 to $717.95.

Accordingly, we reverse the Board’s order.

P. KEVIN BROBSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Archie Lidey I II, : Petitioner :

: v. : No. 726 C.D. 2016
: Workers’ Compensation Appeal : Board (Tropical Amusements, Inc.), : Respondent :

O R D E R

AND NOW, this 17th day of March , 201 7 , the order of the Workers’ Compensation Appeal Board is hereby REVERSED.

P. KEVIN BROBSON, Judge