Arthur Shelley Trucking & Insurance Co. of North America v. Workmen's Compensation Appeal Board

538 A.2d 604, 114 Pa. Commw. 138, 1988 Pa. Commw. LEXIS 281

• Court: Commonwealth Court of Pennsylvania
• Decided: February 29, 1988
• Docket: Appeal, 3197 C.D. 1986
• Status: Published

Opinion

Opinion by

Judge Colins,

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

Claimant was employed as a long-haul tractor trailer operator with petitioners trucking firm. The terms of claimants 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 claimants 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 claimants 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 Boards direction, that the Two Hundred and Seventy-five Dollars ($275.00) should be included in claimants actual weekly wage, such that the correct amount would be claimants weekly wage of Four Hundred and Thirty Doilars ($430.00) for purposes of benefits calculation. Claimants 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.

Petitioner appealed this decision to the Board and on October 24, 1986, the Board affirmed the decision of the referee based upon the Boards mandate that the referee recalculate claimants 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 feet. Ortiz v. Workmen's Compensation Appeal Board (Fair Tex Mills, Inc.), 102 Pa. Commonwealth Ct. 493, 518 A.2d 1305 (1986).

The dispute in this matter centers around the characterization of the Two Hundred and Seventy-five Dollars ($275.00) paid to claimant in advance of each trip. The Board determined that the Two Hundred and Seventy-five Dollars ($275.00) was for meals and lodging and, therefore, should be included in claimants weekly wage. Petitioner suggests that the Two Hundred and Seventy-five Dollars ($275.00) should not have been included in claimants wages because it was reimbursement for the expenses incurred on each trip.

Claimant argues that the plain and unambiguous language of the statute mandates payment of workmens compensation based upon the definition of the terms “average weekly wage” and “total wages.” Section 309(e) of The Pennsylvania Workmens Compensation Act (Act), Act of June 2, 1915, PL. 736, as amended, 77 P.S. §582(e), states, “[t]he terms ‘average weekly wage’ and ‘total wages’ as used in this section, shall include board and lodging received from the employer. . . .” We note that the Act is remedial in nature and must be liberally construed to accomplish its humanitarian purposes. U.S. Steel Corp. v. Workmen's Compensation Appeal Board (Mehalovich), 72 Pa. Commonwealth Ct. 481, 457 A.2d 155 (1983).

Claimant , testified that the Two .Hundred and Seventy-five Dollar'($275.00) check given to him before-each trip- was an. advanee on the Eight Hundred and Sixty Dollars ($860.00) per round.trip. Claimant further testified that he ;was given, an expense check; in addition to the Two Hundred and Seventy-five Dollar ($275.00) check. This check, usually in the amount of One, Hundred Dollars ($100.00), was-for truck maintenance and tolls. Furthermore, : all gasoline was purchased from stations where petitioner had established credit. The fact that claimant, did not report , the Two Hundred and Seventy-five Dollar ($275.00) advance, money as income on his federal tax return is not dispositive, of the issue as to. whether-or not, the Two Hundred and Seventy-five Dollars. ($275.00) should .be..included as wagesi for the basis of compensation. ... , -

In Collier v. Kaufmann & Baer Co., 352 Pa, 412, 43 A.2d 9 (1945), our Supreme Court adopted'the language of the Superior Court used in interpreting, the formula to determine the average weekly wage under the forerunner of the present section of the Act.. The Superior Court stated;: 4 ,

It is obvious to anyone who reads the section that the legislature has .exerted its utmost to devise those formulae. which in each, case will, as nearly as possible, determine the ,actual as distinguished from the theoretical; earnings of the employee. With this ultimate purpose in mind it is the duty of the compensation authorities as well as ours to apply the law to . the facts.

Collier v. Kaufmann & Baer Co., 155 Pa. Superior Ct. 302-303, 38 A.2d 707 (1944).

The mere feet that the employer termed the initial payments as reimbursement for expenses rather than wages cannot defeat the express statutory declaration that “board and lodging” must be included as wages for purposes of compensation. , ,

•This case is factually distinguishable from Adams v. Workmen's Compensation Appeal Board (Frank D. Suppa Logging), 107 Pa. Commowealth Ct. 30, 527 A.2d 625 (1987). In Adams, we held that extra remuneration delineated as chain saw rental paid by the employer (a logging compány) to an employee (a logger) to cover the cost and expenses associated with the usé of the employees chain saw would riot be included as wages for the purpose of determining the compensation rate. Unlike the instant matter, our determination in Adams was not governed by any specific legislative mandate.

Petitioner argues that since the referee made a finding of fact that these monies were for the reimbursement of expenses, the Board was without authority to . remand this matter to recalculate the average weekly wage. The Board was correct .in,remanding this matter notwithstanding -the referees finding. In Weaver v. Workmen's Compensation Appeal Board (Ribstone S. of Pa.), 90 Pa. Commonwealth Ct. 262, 494 A.2d 882 (1985), this Court held that a statement that was not a finding of feet could ,not be made: a finding of feet by placing it -under the heading of findings of fact when; in actuality, the statement was a conclusion of law subject to the Boards and oür réview:' Weaver further held that what constitutes an injury or personal injury for purposes of compensation is a question of law. So, too, what constitutes an employee’s average weekly wage or total wage is a question of law subject to the Board’s and our review. Frirtherriiore, a referee is permitted to entér a different decision after remand on ¡the, same evidence. See Burton v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 476, 431 A.2d 1164 (1981).

The: referee upon remand determined that the money advanced to claimant satisfied the definition of aver age weekly wage and total wages and, therefore, recalculated claimants rate of compensation payable.

Accordingly, the order of the Board is affirmed.

Order

And Now, this 29th day of February, 1988, the order of the Workmens Compensation Appeal Board in the above-captioned matter is hereby affirmed.