Modifying Workers Comp Benefits to An Employee Whose Salary Is Based Solely on Commission
In Thomas v. Workmen's Compensation Appeal Board (Winzek Catering Service), 522 A.2d 115 (Pa. Cmwlth. 1987), vacated and remanded, 518 Pa. 554, 544 A.2d 958 (1988), an employer sought to modify benefits based on the availability of a homebound telephone solicitor position that was compensated on a commission basis.
The claimant argued against the modification because there was no salary or wage, only commissions. However, the vocational rehabilitation expert testified that the average person in the position earned $65.00 to $75.00 per week.
Based on that testimony, this court affirmed the modification of benefits. Id.
In a dissenting opinion, Judge Craig pointed out that the vocational rehabilitation expert based the claimant's earning power on the performance of an average employee, not the performance of a person with the qualifications of the claimant. Id. (Craig, J, dissenting).
Judge Craig stated, "Because jobs which pay solely on a commission basis are inherently risky, findings must make clear the factors which contribute to a determination that ... a specific net amount can be earned as commission." Id. at 118.
The matter was appealed to the supreme court, which vacated and remanded for further hearings to determine the actual earnings the claimant would receive as a telephone solicitor, given the claimant's qualifications. Thomas v. Workmen's Compensation Appeal Board (Winzek Catering Service), 518 Pa. 554, 544 A.2d 958 (1988) (per curiam).