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DANIEL GEORGE HUGHES v. WORKMEN'S COMPENSATION APPEAL BOARD (SALEM TRANSPORTATION CO. (08/05/86)

decided: August 5, 1986.

DANIEL GEORGE HUGHES, DECEASED, REBECCA LANE HUGHES, WIDOW, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SALEM TRANSPORTATION CO., INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Daniel George Hughes, Deceased, Rebecca Lane Hughes, Widow, v. Salem Transportation Co., Inc., No. A-77484.

COUNSEL

Arthur G. Girton, Arthur G. Girton, P.C., for petitioner.

Susan McLaughlin, for respondent, Salem Transportation Co., Inc.

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

Author: Rogers

[ 99 Pa. Commw. Page 458]

Rebecca Lane Hughes (claimant) has filed a petition for review of an order of the Workmen's Compensation Appeal Board (Board) reducing the amount of compensation awarded her by a referee for the death of her husband.

The claimant's husband, Daniel George Hughes (decedent), died on July 3, 1977 as a result of injuries sustained in an automobile accident during his work as a limousine driver for the Salem Transportation Company, Inc. (Salem). He was survived by the claimant and his minor daughter. At the time of the accident, the decedent was also a member on active duty of the United States Navy (federal government) under a contract of enlistment which commenced in 1962. His work for the federal government was done at the Philadelphia Naval Base. His average weekly wage from Salem was $165.00. He earned $199.07 a week from his work for the federal government.

On July 18, 1979 the referee handed down a decision in which he concluded that Salem and the federal government were concurrent employers of the decedent for the purpose of computation of wages under Section 309(e) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(e). Section 309(e) requires that when an injured employee is concurrently working under contracts with

[ 99 Pa. Commw. Page 459]

    two or more employers, his wages from all of such employers shall be considered as if earned from the employer liable for compensation under the Act. The referee computed compensation due Mr. Hughes' survivors on the basis of Hughes' earnings from both Salem and the federal government.

On appeal, the Board concluded that the federal government was not Hughes' employer and awarded compensation based only on his earnings at Salem. The claimant has appealed.

The board based its decision against the claimant on the case of Pennsylvania National Guard v. Workmen's Compensation Appeal Board and David H. Greenwood, 63 Pa. Commonwealth Ct. 1, 437 A.2d 494 (1981) (Greenwood I). Greenwood I is really not helpful in the decision of this appeal. David H. Greenwood, a member of the Pennsylvania National Guard, sustained an injury while participating in annual Guard training. He filed a claim petition for workmen's compensation. A referee denied benefits; the Board reversed the referee's decision. On further appeal the Commonwealth Court vacated the Board's order holding that the Workmen's Compensation Board was without subject matter jurisdiction because Section 702 of the Military Code, Act of May 27, 1949, P.L. 1903, as amended, 51 Pa. C.S. § 702, vests the exclusive power to award relief to members of the National Guard injured on duty in the Pennsylvania Department of Military Affairs. The case was not about concurrent employers; and the dispute was not over the amount of compensation.

The claimant, in turn, relies on Greenwood v. Commonwealth Department of Military Affairs, 78 Pa. Commonwealth Ct. 480, 468 A.2d 866 (1983), rev'd, 510 Pa. 348, 508 A.2d 292 (1986) (Greenwood II), the sequel to Greenwood I. This was Mr. ...


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