Appeal from the Order of the Workmen's Compensation Appeal Board in case of George W. Cunningham v. White Haven Borough, No. A-82493.
John E. O'Connor, for petitioners.
No appearance for respondents.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Barry did not participate in the decision in this case.
[ 92 Pa. Commw. Page 124]
White Haven Borough and its insurer, Pennsylvania National Mutual Casualty Insurance Company, hereafter referred to as Defendants, appeal here an order of the Workmen's Compensation Appeal Board (Board) which dismissed Defendants' petition for modification of the Notice of Compensation Payable under which compensation has been paid to George W. Cunningham, Claimant, for injuries sustained by him on April 24, 1977 while serving as an ambulance attendant in the volunteer fire department of White Haven Borough. We are asked to review and modify the Notice of Compensation Payable to change the
[ 92 Pa. Commw. Page 125]
stipulated compensation wage, fixed therein at the Statewide Average Weekly Wage of $199.00, and providing the weekly benefit rate of $132.67, being two-thirds of the Statewide Average Weekly Wage as provided in Section 306(a) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 511. Defendants' contention is that the present rate was improperly mandated under the provision in Section 601 of the Act, 77 P.S. § 1031, creating an "irrebuttable presumption," requiring that a volunteer fireman's wages be fixed "at least equal to the Statewide average weekly wage for the purpose of computing his compensation under Sections 306 and 307," since this provision of Section 601 is constitutionally defective;*fn2 that, therefore, without this mandated wage, Claimant, whose actual earnings were $50 per week in self-employment, is entitled only to the minimum wage provided in Section 306(a) of thirty-three and one-third percent of the "maximum weekly compensation payable,"*fn3 or $66.33 per week.*fn4 We note in passing that Defendant's contention thus seeks from us application of a wage base statutorily mandated, as in this case under Section 601, to provide a higher benefit wage than would result if based solely upon the actual earnings of the Claimant; the difference, of course, is the amount payable.
[ 92 Pa. Commw. Page 126]
The case comes before us at a time when Claimant is receiving payment for a continuing partial disability, having received compensation under the Notice of Compensation Payable at the rate of $132.67 based upon average weekly wage of $199.00, the Statewide Average Weekly Wage, as previously noted. The petition to terminate benefits was filed on October 6, 1978 and supplemental agreements have been entered into between the parties on September 3, 1977, October 31, 1980, January 20, 1981 and June 15, 1981. Despite these agreed payments a petition to modify was filed, now presently before us, in which it is contended that Section 601 is unconstitutional and that the amount of compensation payable should be modified to that which is payable as the minimum of one-third of the maximum weekly compensation payable as provided in Section 306(a). The referee, declining to address the constitutional issue on the ground that he was "without jurisdiction to decide," allowed the existing agreed benefit rate to stand. An appeal to the Board followed which resulted in an order affirming the referee's decision, except for a modification not now relevant here, but passing upon the constitutional issue as to Section 601 of the Act, the relevant portion of which provides:
In all cases where an injury compensable under the provisions of this Act is received by a member of a . . . volunteer fire company, or volunteer fire department . . . whether employed, self-employed, or unemployed, there is an irrebuttable presumption that his wages shall be at least equal to the Statewide average weekly wage for the purposes of computing his compensation under Sections 306 and 307 of this act.
[ 92 Pa. Commw. Page 127]
In affirming the referee's refusal of modification, ...