In S. Weissman v. WCAB (Podiatry Care Center, P.C.) the Claimant had substantial pre-injury wages from the time of injury employment and substantial earnings from pre-injury self employment. He was able to continue self-employment after the injury. Excluding his self-employment earnings from his Average Weekly Wage, but using them in a partial disability calculation would have resulted in a suspension of benefits.
The WCJ concluded it was fair to award a modification of benefits only on any increase in self-employment earnings after the work injury. The Board reversed and required the WCJ to suspend benefits. On appeal to the Commonwealth Court, the Court reversed the Board and endorsed the reasoning of the WCJ.
The Court recognized the Employer would receive a windfall in this scenario when the Claimant was able to continue substantial self-employment. Based on Colpetzer v. Workers' Comp. Appeal Bd. (Standard Steel), ___ Pa. ___, 870 A.2d 875 (2005)(Colpetzer II), the Court held the "economic reality" of the Claimant's pre-injury earning experience must be considered (quotes in original). The Court stated Colpetzer II addresses the proper manner of calculating a claimant's AWW when his employment situation was not specifically addressed by the statute, and that is to make a calculation based on "the economic reality of a claimant's recent preinjury earning experience." Triangle Bldg. Ctr. v. Workers'? Comp. Appeal Bd. (Lynch), 560 Pa. 540, 746 A.2d 1108 (2000)
The Court endorsed the solution of the WCJ and remanded for modification of benefits based only on the increase in the Claimant's self-employment earnings.