Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Robert L. Adams v. Frank D. Suppa Logging, No. A-84496.
Bernard J. Hessley, for petitioner.
Jerome Grossi, with him, Paul Dufallo, Deputy Chief Counsel, and Catherine A. Blue, Assistant Counsel, for respondents.
Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.
[ 107 Pa. Commw. Page 31]
Robert L. Adams (petitioner) appeals a decision of the Workmen's Compensation Appeal Board (Board) which dismissed the petitioner's petition to review a notice of compensation payable. We affirm.
The petitioner was employed by Frank D. Suppa Logging (employer) as a logger until October 20, 1979, when he sustained a work-related injury. Prior to this
[ 107 Pa. Commw. Page 32]
incident, the petitioner had been receiving wages of One Hundred Fifty Dollars ($150.00) per week. The employer also paid the petitioner a separate amount, termed "equipment rental," ostensibly for the petitioner's use of his power saw and for furnishing his own fuel. This amount ranged from approximately Forty Dollars ($40.00) per week to Three Hundred Seventy Five Dollars ($375.00) per week, according to the number of days the petitioner actually worked. The employer made deductions for state and local taxes from the initial wages, but not from the equipment rental. Accordingly, for the base year in question, the employer filed a W-2 Form for petitioner's wages in the amount of Six Thousand Dollars ($6,000.00) and a 1099 form in the amount of Nine Thousand Twenty Dollars ($9,020.00) for the equipment rental payments. The petitioner, in filing his income tax, deducted a depreciation allowance for his saw and fuel costs and paid income tax on the balance he received from the equipment rental.
Following his injury, the petitioner received benefits pursuant to a notice of compensation payable. He subsequently filed a petition to review the notice of compensation, alleging that it was incorrect in that it did not include the payments for equipment rental in determining his average weekly wage.
The referee found that the petitioner's arrangement for payment was common practice in the logging industry and held that the petitioner had failed to meet his burden of proving that the notice of compensation payable was incorrect. The Board affirmed the referee's decision on the basis that the petitioner had failed to show what part of the equipment rental payments, if any, was in the nature of wages and what portion was for fuel, maintenance and depreciation in connection with the use of his power saw.
The petitioner, seeking to modify the compensation agreement, has the burden of ...