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THOMAS HARTWELL v. WORKMEN'S COMPENSATION APPEAL BOARD (MCLEAN TRUCKING CO.) (04/09/86)

decided: April 9, 1986.

THOMAS HARTWELL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MCLEAN TRUCKING CO.), RESPONDENTS. THOMAS YESOVICH, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (MCLEAN TRUCKING CO.), RESPONDENTS. WALTER GURGACZ, JR., PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (MCLEAN TRUCKING CO.), RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in the case of In Re: Claim of Thomas Hartwell v. McLean Trucking Company, No. A-83962; In Re: Claim of Thomas Yesovich v. McLean Trucking Company, No. A-83963; and In Re: Claim of Walter Gurgacz, Jr. v. McLean Trucking Company, No. A-83964.

COUNSEL

Ernest B. Orsatti, Jubelirer, Pass & Intrieri, P.C., for petitioners.

Joseph F. Grochmal, with him, Leonard P. Kane, Jr., and Michael D. Sherman, Fried, Kane, Walters and Zuschlag, for respondent, McLean Trucking Company.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 96 Pa. Commw. Page 314]

These three workmen's compensation appeals, consolidated for argument and decision because they all

[ 96 Pa. Commw. Page 315]

    turn upon one question of law, involve claimants' petitions for review questioning decisions of the Workmen's Compensation Appeal Board which affirmed the allowance of credit to the employer against the employer's workmen's compensation obligations, for holiday pay received by each of the claimants. Generally stated, the question is:

Where each employee's entitlement to holiday pay is conditioned upon the worker having worked for a specified amount of time during the preceding period, but a relief provision allows lost time for compensable injury to be counted as an alternative basis for such entitlement, is the employer entitled to credit against its workmen's compensation obligation, with respect to the days covered by the receipt of such holiday pay, in cases where the entitlement rests entirely upon the relief provision for injured workers?

The facts concerning these claims of claimants Hartwell, Yesovich and Gurgacz are undisputed and, for the purposes of the present question, identical. Each of the Claimants was disabled by a job injury from working during the latter part of 1981 and for at least the first few days of 1982. With respect to a total of five holidays attributable to the Thanksgiving, Christmas and New Year's holidays of that period, the employer, McLean Trucking Company, paid five days of holiday pay to each claimant in accordance with a collective bargaining agreement provision which states:

(b) Any regular employee who does not work on the holiday but who has worked 135 hours in the thirty (30) consecutive work days immediately preceding the holiday shall be entitled to ten (10) hours' pay at the straight time hourly rate for such holiday. Time lost due to vacation or within six (6) months of absence due to a compensable injury shall be used in computing

[ 96 Pa. Commw. Page 316]

    hours worked, if that employee would have received such holiday pay but ...


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