Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Carl L. Brant v. Frank M. Sheesley Company, No. A-86656.
Robert C. Rose, Spence, Custer, Saylor, Wolfe & Rose, for petitioners.
Vincent J. Barbera, for respondent.
Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.
[ 106 Pa. Commw. Page 228]
Frank M. Sheesley Company (employer) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed an order of the referee awarding workmen's compensation benefits to Carl L. Brant (claimant), in accordance with Section 309(e) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(e).
The claimant sustained a compensable injury on July 31, 1980, and was paid compensation for total disability pursuant to a Notice of Compensation Payable in the amount of $242 per week as based on an average pre-injury weekly wage of $505.18. Some two and a half years later, the employer requested review of the compensation agreement, alleging that it had overpaid compensation to the claimant as a result of a miscalculation of the claimant's average weekly wage. The miscalculation, according to the employer, resulted from its use of the optional formula found in Section 309(e) of the Act, which pertinently provides for a computation of the average weekly wage as follows:
If under clauses (a), (b), (c), (d) and (e) of this section, the amount determined is less than if computed as follows, his [sic] computation shall apply, viz.: Divide the total wages earned by the employe during the last two completed calendar quarters with the same employer by the number of days he worked for such employer during such period multiplied by five. [Emphasis added.]
The employer contended to the referee that the computation of claimant's pre-injury average weekly wage should instead be governed by Section 309(d) of the Act, 77 P.S. § 582(d), because the claimant actually worked only five days in the two quarterly periods, i.e., 26 weeks, preceding his injury. Section 309(d) of the Act provides for the computation of the average weekly
[ 106 Pa. Commw. Page 229]
wage as the "wage most favorable to the employe, computed by dividing by thirteen the total wages of said employe earned . . . in the first, second, third, or fourth period of thirteen consecutive calendar weeks in the fifty-two weeks immediately preceding the injury. . . ." In accordance with this computation, the employer contended that claimant's average weekly wage should be only $227.80, rather than the $505.18, forming the basis of the compensation agreement.
Upon consideration of arguments of counsel, and without taking testimony, the referee concluded that the employer had correctly computed the claimant's average weekly wage to be $505.18, thereby entitling claimant to compensation in the amount of $242 per week. The referee further concluded that implementation of Paragraph 309(d)*fn1 of the Act "requires that the employee work continuously for a year preceding the accident for the same employer and that both requirements were fulfilled relative to the claimant's work history." The Board affirmed and the employer's appeal to this Court followed.
Upon appeal, the employer contends that the Board erred as a matter of law in affirming a computation based upon Section 309(e) of the Act. The employer submits that claimant cannot rely on the optional calculation of that section to compute an optimal weekly wage because he did not work the full two quarterly periods ...