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MICHAEL ORLANDO v. SCHIAVO BROTHERS (08/29/73)

decided: August 29, 1973.

MICHAEL ORLANDO, APPELLANT,
v.
SCHIAVO BROTHERS, INCORPORATED AND CONTINENTAL NATIONAL AMERICAN GROUP, INSURANCE CARRIER, AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Michael Orlando v. Schiavo Brothers, Incorporated, and Continental National American Group, Insurance Carrier, No. A-66494.

COUNSEL

Charles C. Hansford, for Thomas F. McDevitt, P.C., for appellant.

David L. Pennington, with him Harvey, Pennington, Herting & Renneisen, Ltd., for appellees, employer and insurance carrier.

James Diefenderfer, for appellee, Workmen's Compensation Appeal Board.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 10 Pa. Commw. Page 87]

Claimant, Michael Orlando, is receiving benefits pursuant to an agreement voluntarily entered into by him and his former employer, Schiavo Brothers, Inc., reciting his disability as a result of back injuries suffered in an accident on February 28, 1967, and which was modified by a supplemental agreement reflecting his return to work at a reduced rate of pay. Orlando thereafter filed a petition to modify the agreement on the

[ 10 Pa. Commw. Page 88]

    ground that his average weekly wages were understated in the original agreement because it had failed to include a bonus paid to him on June 12, 1967. The referee granted claimant's petition, but, on appeal, the Workmen's Compensation Appeal Board reversed, concluding on the facts found concerning the bonus that the referee had committed an error of law in deciding that the bonus should be included in the computation of the claimant's average weekly wage.

The term "average weekly wage" is defined in clauses (d) and (e) of Section 309 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 582, the pertinent parts of which are:

"(d) If at the time of the injury 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 injury, or in case the employe receives wages, monthly or semimonthly, 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 injury. . . .

". . . .

"(e) . . . The terms 'average weekly wage' and 'total wages,' as used in this section, shall include board and lodging received from the employer, and in employments in which employes customarily receive not less than one-third of their remuneration in tips or gratuities not paid by the employer, ...


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