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decided: December 13, 1988.


Appeals from the Order of the Workmen's Compensation Appeal Board, in the case of John A. Follett, Deceased, Lois A. Follett, Widow, No. A-92442.


Donald F. Smith, Jr., Liever, Hyman & Potter, P.C., for petitioner, Lois A. Follett.

Clifford A. Goldstein, with him, Peter J. Weber, Rawle & Henderson, for respondents.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. Judge MacPhail did not participate in the decision in this case.

Author: Barry

[ 122 Pa. Commw. Page 60]

Lois A. Follett (claimant), widow of John A. Follett (decedent), and Massachusetts Life Insurance Company (employer) have filed cross appeals from an order of the Workmen's Compensation Appeal Board (Board) which amended the decision of the referee granting claimant workmen's compensation benefits based on an average weekly wage of $253.84 instead of $142.00 and affirmed the referee's decision in all other respects.

Prior to December 5, 1981, decedent, during the year 1981, was an insurance agent for John Hancock Mutual Life Insurance Company (John Hancock) and, apparently, for other insurance companies. On December 4, 1981, he terminated his status as insurance agent for John Hancock. During the period of October through December of 1981, claimant was paid $4,613.96 by John Hancock.

On December 5, 1981, decedent entered into a "career contract for full-time agents" with Mr. Berry Boyd, the exclusive general agent for the employer in twenty-two counties in the Commonwealth and joint general agent for the employer in three counties in the

[ 122 Pa. Commw. Page 61]

Commonwealth. Decedent, for his services as a full-time agent, was paid on a commission basis by employer. From January 1, 1982 to April 22, 1982, he was paid $622.66 in commissions. On the same date that the decedent was hired as an insurance agent he was also hired by Mr. Boyd as the staff supervisor. For his services as staff supervisor the decedent was paid the sum of $3,000 for the month of December, 1981, and $400.00 per month thereafter for the months of January through March of 1982.

On March 4, 1982, decedent entered into a producer's agreement and producer's service fee agreement with Standard Security Life Insurance Company of New York (Standard Security). Prior to this agreement, he received, on February 15, 1982, a commission of $12.80 for renewal of a life insurance policy of Standard Security on February 5, 1982. On March 5, 1982, the decedent entered into an independent producer's commission agreement with John Hancock wherein he was identified as a broker and an independent contractor to procure applications for ordinary insurance and annuities for John Hancock. There is no evidence indicating whether decedent sold any insurance policies for John Hancock after he entered into this agreement.

On April 22, 1982, decedent died as a result of injuries suffered in a motor vehicle collision. Claimant, thereafter, filed two fatal claim petitions for compensation on behalf of herself and her four children. One named employer as the defendant/employer and the other Mr. Boyd as the defendant/employer. The two fatal claim petitions were consolidated for the purposes of hearing and disposition. The referee found that there was an employer/employee relationship between the decedent and the employer but not between Mr. Boyd and the decedent. He also found that decedent's injuries and death arose in the course of his employment

[ 122 Pa. Commw. Page 62]

    with employer as an insurance agent while engaged in the furtherance of the employer's business. The decedent's average weekly wage was calculated by the referee, who utilized the mathematical formulae set forth in Sections 309(b) and (d) of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(b), (d), to be $141.19.*fn1 Since this was less than 50% of the state-wide average weekly wage which, in the year 1982, was set as $284.00, the claimant's average weekly wage pursuant to Section 307 of the Act, 77 P.S. § 561, was deemed to be $142.00. The weekly rate of the benefits that were to be paid to claimant in her own behalf and that of her children was then calculated using that figure. The referee also found, inter alia, that claimant had incurred costs of $258.30 for transcripts of hearings held before him. However, in entering his order, he did not award the claimant these costs.

Both the claimant and the employer filed appeals with the Board. However, the employer subsequently withdrew its appeal. The Board, utilizing only the formula set forth in Section 309(d), calculated decedent's average weekly wage to be $253.84 and, ...

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