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KRAFT v. HERR'S ISLAND PACKING COMPANY (12/29/72)

decided: December 29, 1972.

KRAFT
v.
HERR'S ISLAND PACKING COMPANY, ET AL.



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Max Frederick Kraft v. Herr's Island Packing Company and Employers-Commercial Union Insurance Company of New York, No. S.A. 921 of 1970.

COUNSEL

Raymond F. Keisling, for appellant.

Warren S. Reding, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 7 Pa. Commw. Page 344]

This is a workmen's compensation case. The sole issue before us is the weekly wage with which Max Frederick Kraft (claimant) should be credited in the computation of his workmen's compensation benefits.

The claimant was employed by the Herr's Island Packing Company (employer) from March 15, 1963 through April 1, 1963. On most of these days he was employed as a clean-up man for a few hours each day. On the days when so employed, he would work until the plant was clean and then he would return home. On three days, however, including the day on which he was injured, the claimant worked as a loader, for a minimum of eight hours each day. The hourly rate of pay was the same for both jobs. On April 1, 1963, while working as a loader, the claimant slipped and severely injured his right knee. Although he had only worked a few hours that day, the employer paid him for an eight-hour day.

Soon after the accident, the claimant and the employer entered into an agreement pursuant to which the claimant's average weekly wage was stated to be $45.30 and he was to receive compensation of $30.20 per week. On July 6, 1966, the employer filed a Petition for Termination on the basis that the claimant had returned to work. In response, the claimant filed a Petition for Modification, alleging that his wages had been improperly computed in the compensation agreement.

[ 7 Pa. Commw. Page 345]

At the hearing before a referee of the Workmen's Compensation Board (Board) it was agreed that the claimant was suffering a 50% partial disability. The employer, therefore, withdrew the Petition to Terminate and left as the sole issue before the referee the computation of the claimant's wages. The referee found that these weekly wages should have been $97.60. The employer appealed to the Board, which held that the figure of $45.30 per week contained in the compensation agreement was correct. The Court of Common Pleas of Allegheny County affirmed the Board's decision.

The procedure for computing weekly wages is established in § 309(d) of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(d).

"Whenever in this article the term 'wages' is used, it shall be construed to mean the average weekly wages of the employe, ascertained as follows: . . . (d) If at the time of the accident the wages are fixed by the day, hour, or by the output of the employe, the average weekly wage shall be the wage most favorable to the employe, computed by dividing by thirteen the total wages of said employe earned in the employ of the employer in the first, second, third, or fourth period of thirteen consecutive calendar weeks in the fifty-two weeks immediately preceding the accident, or in case the employe receives wages, monthly or semi-monthly, by dividing by thirteen the total wages of said employe earned in the employ of the employer in the first, second, third, or fourth period of three consecutive calendar months in the year immediately preceding the accident;

"If the employe has been in the employ of employer less than thirteen calendar weeks (or three calendar months, if the employe receives wages monthly or semi-monthly) ...


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