holding that a retroactive lump sum payment covering the claimant’s first ninety days of employment should be allocated over that time period
How later courts described this case
- holding that a retroactive lump sum payment covering the claimant’s first ninety days of employment should be allocated over that time period
Written by the judges who cited it.
The opinion
SMITH, Judge,
dissenting.
I respectfully dissent. The majority concludes that a lump-sum payment made to Helen Miles (Claimant) well after the time of her injury must be included in her average weekly wage computation pursuant to Section 309 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582. There is no dispute that the terms of Claimant’s employment were that she was a per diem employee paid $32.94 for each of the first 90 days that she worked during the school year. After completing 90 days, her status changed to that of long-term substitute. She was then paid a weekly wage of $480.15, which she received as a payment of approximately $960 every two weeks, retroactive to the beginning of the school year, with the increased payment for the first 90 days paid as a lump sum. Claimant, however, had not attained the higher-paid status as of the time of her injury on February 11, 1993. Although the Workers’ Compensation Judge (WCJ) credited Claimant’s testimony as well as that of her medical witnesses concerning the events of that date and their effect on her, he rejected her assertion that she had attained long-term substitute status in November 1992.
The majority relies upon Lane Enterprises, Inc. v. Workmen’s Compensation Appeal Board (Patton), 537 Pa. 426 , 644 A.2d 726 (1994), and Eljer Industries v. Workmen’s Compensation Appeal Board (Johnson), 670 A.2d 203 (Pa.Cmwlth.1996). In Lane Enterprises the issue was the correct treatment of a sizable annual bonus. The Supreme Court concluded that the bonus was most like wages received annually and that it was properly prorated over four quarters, rather than credited to the quarter in which it was received. The bonus at issue had been received in the year made up of four quarters before the date of injury. Similarly, in Eljer Industries , the dispute concerned treatment of vacation pay and holiday pay that the claimant received in the year preceding his injury. See also Exide Corp. v. Workmen’s Compensation Appeal Board (Kamenas), 653 A.2d 50 (Pa.Cmwlth.1994) (relying upon Lane Enterprises to conclude that vacation pay received in one of the four quarters upon which the average weekly wage calculation was based, i.e., before the injury, should be prorated). In all of these cases the questions concerned the allocation of payments that the claimants had already received.
In the present case, the majority approves a wage calculation incorporating a lump sum that Claimant received after her injury. In my view neither the precedents relied upon nor the Act supports such a result.