Judge did not abuse her discretion in imposing a 50% penalty against the employer for refusing to pay fatal claim benefits because her decision awarding benefits contained an incorrect benefit rate and there was no evidence regarding the decedent’s wages.

A workers’ compensation judge issued a decision granting a fatal claim petition and ordered payment of ongoing weekly benefits to the claimant at the rate of 50% of the decedent’s average weekly wage at the time he last worked in 2010. The employer appealed to the Workers’ Compensation Appeal Board (Board), which denied the employer’s request for Supersedeas. Eventually, the Board remanded the case to the judge for reconsideration of the merits of the petition and to make additional findings based on subsequent case law which the judge did not have during the proceedings. The claimant also filed a penalty petition, alleging the employer failed to pay benefits following the judge’s decision granting the petition. The employer admitted it had not paid any indemnity benefits, but claimed it was justified in doing so since it was unclear whether the claimant’s benefit rate was 50%, per the judge’s order, or 51%, as provided for in the Act. The employer also said it was unable to calculate the decedent’s average weekly wage and, thus, the benefit rate.

The judge granted the penalty petition and ordered the employer to pay a 50% penalty. The employer appealed to the Board, and the Board affirmed the judge. On appeal to the Commonwealth Court, the employer argued that the judge abused her discretion as benefits were ordered based on an incorrect percentage, inconsistent with the Act. Further, the employer argued the judge wrongly ordered benefits to be paid based on the decedent’s wages in 2010, since he worked through the end of 2011, and because there was no evidence in the record regarding the decedent’s wages.

The Commonwealth Court dismissed the employer’s appeal and affirmed the judge and the Board. According to the court, the employer advanced arguments in an attempt to excuse or otherwise downplay its non-compliance with the judge’s order. The court additionally noted that the employer was, and presumably continues to be, in possession of records that pertain to and provide a basis to verify the claimant’s actual wages and average weekly wage. 

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