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BORO MIDLAND AND GENERAL ACCIDENT INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (GRANITO) (07/31/89)

decided: July 31, 1989.

BORO OF MIDLAND AND GENERAL ACCIDENT INSURANCE COMPANY, PETITIONERS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GRANITO), RESPONDENTS



PETITION FOR REVIEW (WORKMEN'S COMPENSATION).

COUNSEL

Charles G. Brown, Dickie, McCamey & Chilcote, Pittsburgh, for petitioners.

Alexander J. Pentecost, Amiel B. Caramanna, Jr., Pittsburgh, for respondents.

Crumlish, Jr., President Judge., Colins, J. and Narick, Senior Judge.

Author: Colins

[ 127 Pa. Commw. Page 463]

The Boro of Midland (Boro) and General Accident Insurance Company (collectively, petitioners) petition for review of an order of the Workmen's Compensation Appeal Board which affirmed a decision of the referee awarding compensation to Rose Granito (claimant) pursuant to a review petition filed by claimant. We affirm.

The decedent, Felix Granito, died on May 8, 1985, as a result of multiple trauma sustained while in the course of his employment with the Boro. Pursuant to a Notice of Compensation Payable filed by the Boro on August 13, 1985, claimant was paid compensation at a rate of $256.05 per week beginning on May 10, 1985.

On July 12, 1985, claimant filed a review petition of the Notice of Compensation Payable on the basis that the average weekly wage had been incorrectly calculated. Claimant contended that pursuant to Section 309(d) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 vacation pay of $3,062.00 paid to the decedent on June 29, 1984 should have been included in the gross pay for the fourth quarter prior to the decedent's death, rather than prorated over the entire year, as the petitioners had done when calculating the average weekly wage.

Hearings were held before a referee, although no testimony was taken by either party throughout the proceedings. In rendering his decision, the referee found that the wage transcript of the decedent which was submitted to General Accident Insurance Company clearly indicated that the vacation

[ 127 Pa. Commw. Page 464]

    pay was included in his fourth quarter wages. The referee noted that this payment was paid almost a year prior to his death and obviously the various tax and social security deductions were deducted from said amount at that time. The referee found that the employer's wage transcript was correctly based upon wages paid to the decedent in the four quarters preceding his injuries and death. Finally, the referee found that the decedent's fourth quarter wages, including the vacation pay, totaled $8,220.30 and were decedent's highest quarterly wages. This translated into an average weekly wage of $632.33 and a compensation rate of $336.00 per week. Accordingly, the referee issued a decision granting claimant's petition and modifying the Notice of Compensation Payable.

On appeal, the Board affirmed the decision of the referee on the basis that the vacation pay was properly included in the fourth quarter wages preceding the decedent's injury, rather than prorated over the entire year. Petitioners now appeal the Board's decision to this Court.

The issue for review is one of first impression before this Court. We must determine whether in the calculation of the average weekly wage, decedent's vacation pay should have been included in the fourth quarter or prorated ...


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