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ARTHUR SHELLEY TRUCKING AND INSURANCE COMPANY NORTH AMERICA v. WORKMEN'S COMPENSATION APPEAL BOARD (BREGMAN) (02/29/88)

decided: February 29, 1988.

ARTHUR SHELLEY TRUCKING AND INSURANCE COMPANY OF NORTH AMERICA, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BREGMAN), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Marc W. Bregman v. Arthur Shelley Trucking, No. A-91464.

COUNSEL

Donald T. Rogers, Lowery, Ciavarella & Rogers, for petitioner.

Gerald R. Schultz, for respondent.

Judges MacPhail, Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 114 Pa. Commw. Page 139]

Arthur Shelley Trucking (petitioner) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision recalculating an award to Marc W. Bregman (claimant) to include as wages the advancement of monies used for meals and lodging. We affirm.

[ 114 Pa. Commw. Page 140]

Claimant was employed as a long-haul tractor trailer operator with petitioner's trucking firm. The terms of claimant's employment required him to make round trips from Pennsylvania to California. Each trip was generally twelve days in duration. Remuneration per round trip was Eight Hundred and Sixty Dollars ($860.00) of which he was advanced Two Hundred and Seventy-five Dollars ($275.00) prior to each trip, with the balance payable upon his return. Claimant suffered a work-related lower back injury on January 4, 1984, following which the parties entered into, by agreement, a notice of compensation payable on February 9, 1984. This notice provided claimant with compensation at the rate of One Hundred and Sixty Dollars ($160.00) per week, based on a weekly wage of Two Hundred Ninety-two Dollars and Fifty Cents ($292.50).

Claimant filed a petition to review the notice of compensation payable on April 18, 1984, alleging that there was a miscalculation of his weekly wage which resulted in an erroneous compensation rate payable. A referee dismissed claimant's contention on October 3, 1984, and claimant appealed to the Board.

On January 7, 1986 the Board remanded the case to the referee to recalculate claimant's rate of compensation based on bi-weekly wages of Eight Hundred and Sixty Dollars ($860.00). On remand, the referee determined, in accordance with the Board's direction, that the Two Hundred and Seventy-five Dollars ($275.00) should be included in claimant's actual weekly wage, such that the correct amount would be claimant's weekly wage of Four Hundred and Thirty Dollars ($430.00) for purposes of benefits calculation. Claimant's compensation was adjusted to Two Hundred and Eighty-six Dollars and Sixty-seven Cents ($286.67) per week, and the petitioner was given credit for the One Hundred and Sixty Dollars ($160.00) per week that had been paid to date.

[ 114 Pa. Commw. Page 141]

Petitioner appealed this decision to the Board and on October 24, 1986, the Board affirmed the decision of the referee based upon the Board's mandate that the referee recalculate claimant's average weekly wage. It is the appeal from the October 24, 1986, Board order that is before this Court.

Our scope of review is limited to determining whether constitutional rights have been violated, an error of law was committed, or whether there is substantial evidence in the record to support the findings of fact. Ortiz v. Workmen's Compensation Appeal Board (Fair ...


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