In a very well organized opinion in Verizon Pennsylvania, Inc. v. WCAB (Baun), the Commonwealth Court provided guidance on the modification of benefits under §306(b)(1) which provides an employe shall not receive more in compensation and wages combined than the current wages of a fellow employe in employment similar to that in which the injured employe was engaged at the time of injury. Although the Court held the Employer did not meet its threshold burden to demonstrate what similarly situated employees were making at the time of injury, the Court went on to clarify its interpretation of the remainder of any §306(b)(1) analysis.
The Court held the threshold burden is to establish the wages at the time of injury of the class of similarly situated employees. The Court stated a WCJ may elect to evaluate the wages of each employee in the class or rely on an average or median, as the WCJ's discretion directs.
The court further stated Maier's Bakery v. Workers' Comp. Appeal Bd. (Sandt), 751 A.2d 1208 (Pa. Cmwlth. 2000) does not require that the Employer must show economic distress caused wages to be reduced. The Court explained there is no such requirement in the statute.
Finally, the Court stated the only comparison to be made by the WCJ is whether the Claimant is currently receiving more in wages and compensation combined than the class of similarly situated employees. The Claimant had returned to work at modified duty, and there would be a figure that represents the Claimant's wages and compensation combined. Even if, as here, some employees in the class were currently making more than the Claimant's Average Weekly Wage, this fact does not necessarily enter into the comparison to be made between what the Claimant receives and the representative current wages of the class that the WCJ determines.