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MAX FREDERICK KRAFT v. COMMONWEALTH PENNSYLVANIA (04/06/79)

decided: April 6, 1979.

MAX FREDERICK KRAFT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, HERR'S ISLAND PACKING COMPANY AND COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, INSURANCE CARRIER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Max Frederick Kraft v. Herr's Island Packing Company, No. A-73168.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for petitioner.

Warren S. Reding, with him Reding & Rea, and James N. Diefenderfer, for respondent.

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

Author: Craig

[ 41 Pa. Commw. Page 517]

Claimant Max Kraft appeals the decision of the Workmen's Compensation Appeal Board (Board) setting aside certain findings of the referee and reducing compensation payments based on its substituted findings that claimant's average weekly wage for purposes of compensation under Section 309(d) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 was $21.83.

The Board held that the referee erroneously calculated claimant's compensation by using as a basis the wages earned by a regular employee paid for a minimum forty-hour $97.60 work week, when this Court had previously established that claimant was a temporary employee paid only for hours of actual labor. We affirm the Board's decision.

This case was before us previously in Kraft v. Herr's Island Packing Co., 7 Pa. Commonwealth Ct. 343,

[ 41 Pa. Commw. Page 518298]

A.2d 275 (1972), at which time this Court specifically affirmed the Board's finding that claimant was not a full-time regular employee whose weekly wage was based on a forty-hour work week, as had been determined by the referee. We found substantial evidence to support employer's contention that claimant was on probationary status and thus entitled to receive pay only for hours of actual work.

We remanded solely because the Board had erred as a matter of law in computing claimant's average wage by using the amount claimant actually earned and dividing by the number of hours he actually worked.

Section 309(d) provides that the correct method of computation of wages for an employee who has not worked the full thirteen weeks before being injured is to ascertain the amount another employee in a similar occupation would have earned during that time period. In the case of claimant, this Court held that a similarly situated employee was a temporary employee. The pertinent provision of the statute states:

If the employe has been in the employ of employer less than thirteen calendar weeks . . . immediately preceding the injury, his average weekly wage shall be computed under the foregoing paragraph, taking 'total wages' for such purpose to be the amount he would have earned had he been so employed by employer the full thirteen calendar weeks . . . immediately preceding the injury and had ...


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