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GUTTMAN OIL COMPANY AND KANSAS CITY FIRE & MARINE v. COMMONWEALTH PENNSYLVANIA (03/13/81)

decided: March 13, 1981.

GUTTMAN OIL COMPANY AND KANSAS CITY FIRE & MARINE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WILLIAM B. MILLER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of William B. Miller v. Guttman Oil Company, No. A-77432.

COUNSEL

David M. McCloskey, Will & Keisling, for petitioners.

John T. Olshock, with him Mark K. Wade, Patrono, Ceisler, Edwards & Pettit, for respondent, William B. Miller.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 57 Pa. Commw. Page 487]

William B. Miller (Claimant), a truck driver, sustained a work-related disabling injury on February 28, 1977. A notice of compensation payable was executed calling for a weekly disability benefit of $199.00. On February 5, 1979, Claimant's employer filed a petition for modification of the compensation agreement requesting a determination of partial disability benefits on the basis that the Claimant was no longer totally disabled.

At the hearing before the referee with both parties represented by counsel, it was stipulated that, prior

[ 57 Pa. Commw. Page 488]

    to his injury, Claimant worked four days per week, ten hours per day; that he was paid on an hourly basis at the rate of $60.30 per day; and that he has returned to work as a dispatcher with the same employer receiving a monthly salary of $693.08. At the hearing, the referee asked counsel if they only wanted him to determine what the average weekly wage was at the time of the injury. Counsel agreed that that was the issue to be resolved. The referee determined that the Claimant's average weekly wage was $241.20 and that the weekly disability rate for total disability was $160.80. On Claimant's appeal to the Workmen's Compensation Appeal Board (Board), the referee's decision was reversed. The Board found that the Claimant's average weekly pre-injury wage was $301.50 and that the compensation rate for total disability was $199.00 per week. This appeal followed.

Initially, it will be observed, as the employer has argued to us, that neither the referee nor the Board determined the rate of partial disability payments. Nevertheless, the issue framed by the employer in this appeal is whether the Board erred when it used a formula different from that of the referee in calculating Claimant's average weekly wage. Accordingly, we will limit our discussion to that issue.*fn1

At issue is the application of Section 309(e) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 582(e) which reads in pertinent part as follows:

If under clauses (a), (b), (c), (d) and (e) of this section, the amount determined is less than if computed as follows, this computation shall apply, viz.: Divide the total wages earned by ...


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