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 
2

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

Act1based 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. 
3

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 Act2suspending 

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. 
4

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, 151a152a; 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, 92a94a; 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 
5

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, 92a93a.) 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.
6

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 preinjury 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 
7

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). 
8

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.
9

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 
10

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 
11

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).
12

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 preinjury 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. 
13

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
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 :

O R D E R

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