Appeal from the Order of the Workmen's Compensation Appeal Board in case of Harold D. Katz v. The Evening Bulletin, No. A-70818.
James K. Martin, with him David P. Rovner, for appellants.
Charles E. McChafforty, with him Thomas F. McDevitt, for appellee.
Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Mencer. This decision was reached prior to the expiration of the term of office of Judge DiSalle.
[ 48 Pa. Commw. Page 426]
In Katz v. Evening Bulletin, 485 Pa. 536, 542, 403 A.2d 518, 521 (1979), our Supreme Court remanded this case "for review of the proper rate of compensation to appellant [Harold D. Katz]."
Thus, the narrow issue remaining in this workmen's compensation case is whether the referee and the Workmen's Compensation Appeal Board erred in permitting Harold D. Katz (Katz) to aggregate the wages earned in concurrent employment to enhance the wage base for calculation of his compensation rate.
The date of the injury to Katz was May 29, 1970, and on that date Katz's primary employer was the United States Army. For about a year before that date, he had also worked part time for the Philadelphia Inquirer. The union, which supplied weekend workers for both the Inquirer and the Bulletin, sent him to the Bulletin to work on May 29, 1970. As he was leaving work after completing his shift -- his first and only at the Bulletin -- he fell into a manhole on the premises and sustained injuries.
In determining the liability of an employer in a concurrent-employment situation, we must examine the applicable statutory provisions extant at the time
[ 48 Pa. Commw. Page 427]
of the injury. On May 29, 1970, the pertinent part of Section 309(e) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(e), provided:
Where the employe is working under concurrent contracts with two or more employers and the defendant employer has knowledge of such employment prior to the accident, his wages from all such employers shall be considered as if earned from the employer liable for compensation. (Emphasis added.)
Here, the Bulletin asserts that the employer's knowledge of such other employment, required by this statutory provision, must mean "actual knowledge" but Katz claims it means merely that the employer "should have known" that he was a part-time ...