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FAIRCHANCE LUMBER COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (GLEBIS) (12/18/86)

decided: December 18, 1986.

FAIRCHANCE LUMBER COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GLEBIS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Anthony Glebis v. Fairchance Lumber Company, No. A-87381.

COUNSEL

Michael E. Relich, Fried, Kane, Walters & Zuschlag, for petitioner.

Howard Grossinger, with him, Stephen C. Schemerin, for respondent, Anthony Glebis.

Judges Barry, Colins (p) and Palladino, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 102 Pa. Commw. Page 488]

Fairchance Lumber Company (employer) appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of workmen's compensation to Anthony Glebis (claimant), a construction laborer, pursuant to Section 309(d) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 582(d), in

[ 102 Pa. Commw. Page 489]

    the amount of $284.00 per week as based upon the referee's determination that claimant's average pre-injury weekly wage amounted to $578.88.

Upon appeal to this Court, the employer submits that the referee erroneously computed the claimant's pre-injury weekly wage, a miscalculation that may be utilized to compute compensation in any future proceedings in this claim.*fn2 The claimant contends that the employer has waived our consideration of the allegedly erroneous computation by its failure to object to the claimant's wage testimony or to introduce wage evidence at the hearings before the referee.

The record indeed reveals that the claimant's statements that he worked "about seven days" for the employer, at $12.06 per hour for eight hours per day, constituted the only evidence presented by either party concerning claimant's pre-injury earnings. However, the fact that the employer did not object to this testimony or introduce contrary evidence does not lead us to conclude that the issue of award computation has been waived.

The doctrice of waiver has been employed in unemployment compensation to preclude appellate review of issues not raised before the referee or the Board. See Wing & King v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981); see also 2 Pa. C.S. § 703. On appeal to the Board, the employer here alleged errors of law in (1) the referee's method of calculating the claimant's average weekly wage and (2) the award of compensation based on an average weekly wage of $578.88. We take the employer's argument, as

[ 102 Pa. Commw. Page 490]

    raised before the Board,*fn3 to be that the referee erred in the application of Section 309(d) of the Act to the figures derived from the claimant's testimony. As the Act does not contemplate the filing of exceptions to a referee's determination, we fail to understand how the employer could have raised the issue of the computation of benefits at ...


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