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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND HAROLD D. KATZ v. EVENING BULLETIN AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY WISCONSIN (05/25/82)

decided: May 25, 1982.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND HAROLD D. KATZ, APPELLANTS,
v.
THE EVENING BULLETIN AND THE EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN



No. 80-3-565, Appeal from the Order Dated January 10, 1980 of the Commonwealth Court at No. 1067 C.D. 1976.

COUNSEL

Thomas F. McDevitt, John C. McFadden, Philadelphia, for appellants.

James K. Martin, Philadelphia, for appellees.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: Nix

[ 498 Pa. Page 221]

OPINION OF THE COURT

The sole issue in this appeal is whether the referee properly found that the instant employer, The Evening Bulletin, a former Philadelphia newspaper, had knowledge of claimant's concurrent employment for purposes of computing claimant's average weekly wage pursuant to Section 309(e) of the Pennsylvania Workmen's Compensation Act*fn1 (Act) in effect at the time of the claimant's injury.

In a prior opinion*fn2 we remanded the instant case to the Commonwealth Court for review of the proper rate of compensation to appellant, Harold D. Katz, after holding that appellant had complied with the notice provisions of the Act, Section 312, 77 P.S. ยง 632. Upon remand, 48 Pa. Commw. 425, 409 A.2d 970, the Commonwealth Court held that Section 309(e) requires that the employer know of the other employment if the employee's wages from all employers are to be considered as if earned from the employer liable for compensation and that claimant's employer, The Evening Bulletin, did not have "actual" knowledge of his concurrent employment. That court reversed the order of the Workmen's Compensation Appeal Board, affirming the referee's award of benefits to appellant and remanded the case for recomputation. For the reasons that follow, we reverse the order of the Commonwealth Court and reinstate the order of the Workmen's Compensation Appeal Board which affirmed the referee's award of benefits.

The underlying facts as stated in our prior opinion are as follows:

Appellant Katz worked part-time as a substitute "mailer" and "stuffer." In this capacity, he collected newspapers off the presses and, by machine or by hand, stuffed supplements into the papers and stacked them for distribution. Appellant's union, the Mailer's Union, acts as the hiring agent [emphasis added] for both the Philadelphia

[ 498 Pa. Page 222]

    include the total earnings of the employee.*fn4 There was a concern that the employer might be required to provide compensation greater than the wages actually earned in that particular employment and the affected carrier would be called upon to make an outlay in excess of the premiums received. It was also contended that employment in a more hazardous occupation would be unfair to the employer providing a less hazardous employment. The illusory quality of the latter concern is readily apparent. Whether the concurrent employment is risky or safe in no way affects the impact of the concurrent employment wage rule on the employer in whose employment an injury has actually occurred.

Equally as transparent is the first objection. It is obviously repulsive to legislation, that is remedial in intent, to construe such legislation as relegating a claimant to a part-time wage basis, although his actual earnings are that of a full-time member of the labor force. Moreover, any isolated example of an injustice will be eradicated by an overall view of the situation. It is legitimate to consider the employer's sector as a composite, since that is the perspective used to determine premiums for workmen's compensation coverage. It is not fair to apply such a perspective to the individual workman whose entire life and that of his family may be dependent upon the award received in a given case. Most state legislatures have, as has Pennsylvania,*fn5 deleted limitations and permitted wages from all employers to be considered in determining the rate of ...


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