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FANNIE M. BURROUGHS v. WORKMEN'S COMPENSATION APPEAL BOARD (BROOKVALE MANUFACTURING CO. (04/18/83)

decided: April 18, 1983.

FANNIE M. BURROUGHS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BROOKVALE MANUFACTURING CO., INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Fannie M. Burroughs v. Brookvale Manufacturing Co., Inc., No. A-79135.

COUNSEL

Peter M. Suwak, for petitioner.

David McCloskey, with him Ronald Ganassi, Will & Keisling, for respondent, Brookvale Manufacturing Co., Inc.

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

Author: Rogers

[ 73 Pa. Commw. Page 460]

Fannie Burroughs, a workmen's compensation claimant and the appellant in this case, began her employment with Brookvale Manufacturing Co., Inc. in 1976 as a hand presser of men's coats in which position she was paid an hourly wage. In March or April of 1977 her position was changed to that of steam shoulder press operator trainee and for this work she was paid on a piece rate basis. She suffered an injury to her left hand on June 7, 1977. After returning to work the petitioner was given work other than that of steam shoulder press operator. The petitioner therefore had worked for her employer for a total period of about ten months and as a steam shoulder press operator trainee for a period of less than thirteen weeks at the time of her injury.

[ 73 Pa. Commw. Page 461]

The petitioner filed a claim petition which the referee properly treated as a petition to set aside the final receipt she had signed when she returned to work. After a hearing, the referee found that the claimant remained partially disabled and set aside the final receipt; but he suspended compensation because the petitioner's earnings following her return to work as he computed them were more than her pre-injury average earnings of $130.00 per week. The Workmen's Compensation Appeal Board affirmed and this appeal followed.

The claimant contends that her pre-injury wages were improperly computed and that if they had been computed properly they would have been shown to be more than her earnings when she returned to work. Her thesis is bold, imaginative and goes as follows: that although during her work as a steam shoulder press operator trainee she had been able to press 600 coats a day, she would, when experienced, be capable of pressing 1000 coats a day; that the earnings which she would have enjoyed as an experienced steam shoulder press operator trainee pressing 1000 coats a day would have been such that if they had been used as the basis of the referee's computation, they would have exceeded her post injury earnings. She should therefore have been found to be entitled to an award for her partial disability.

Section 309 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 582 provides as follows:

Wherever in this article the term "wages" is used, it shall be construed to mean the average weekly wages of the employee ascertained in accordance with rules and regulations of the Department as follows:

[ 73 Pa. Commw. Page 462]

(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 semi-monthly, by dividing by thirteen the total wages of said employe earned in the employ of ...


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