Follett v. Workmen's Compensation Appeal Board

551 A.2d 616, 122 Pa. Commw. 58, 1988 Pa. Commw. LEXIS 953
CourtCommonwealth Court of Pennsylvania
DecidedDecember 13, 1988
DocketAppeals Nos. 1885 C.D. 1987 and 1911 C.D. 1987
StatusPublished
Cited by9 cases

This text of 551 A.2d 616 (Follett v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Follett v. Workmen's Compensation Appeal Board, 551 A.2d 616, 122 Pa. Commw. 58, 1988 Pa. Commw. LEXIS 953 (Pa. Ct. App. 1988).

Opinion

Opinion by

Judge Barry,

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 Workmens Compensation Appeal Board (Board) which amended the decision of the referee granting claimant workmens compensation benefits based on an average weekly wage of $253.84 instead of $142.00 and affirmed the referees 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 [61]*61Commonwealth. 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 producers agreement and producers 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 producers 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 decedents injuries and death arose in the course of his employment [62]*62with employer as an insurance agent while engaged in the furtherance of the employers business. The decedents average weekly wage was calculated by the referee, who utilized the mathematical formulae set forth in Sections 309(b) and (d) of the Pennsylvánia Workmens Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §582(b), (d), to be $141.19.1 Since this was less than 50% of the state-wide average weekly wage which, in the year 1982, was set as $284.00, the claimants 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 decedents average weekly wage to be $253.84 and, accordingly, amended the referees decision while affirming the [63]*63referees decision in all other aspects. These cross appeals followed.

The claimant, in her appeal, first contends that the referee and' Board erred in failing to compute the decedents average weekly wage under the mathematical formula set forth in Section 309(f) of the Act, 77 P.S. §582(f). According to the claimant, calculation of the decedents average weekly wage under that formula would have resulted in the calculation of an average weekly wage more favorable than that reached by either the referee or the Board. Specifically, she contends that calculation of the decedents average weekly wage under Section 309(f) produces a figure of $585.69.

Section 309(f) establishes a mathematical formula for calculating the average weekly wage of an employee that may be used as an alternate to the set of formulae set forth in Sections 309(a)-(d) for employees whose occupations are not exclusively seasonal and the formula set forth in the first paragraph of Section 309(e) for employees whose occupations are exclusively seasonal. It provides:

In no case shall an employes average weekly wage be less than one-thirteenth of his highest calendar quarter wage amount in the first four of the last five completed quarters immediately preceding the date of his injury, and compensation payments may be commenced on this basis unless other information obtained by the employee or employer establishes a higher weekly wage under this section.

The referee rejected utilization of the above formula for calculating the decedents average weekly wage on the ground that decedent had worked for the employer for less than two calendar quarters. In doing so, he erred. Section 309(f) does not require that an employee must have worked for an employer for any specified pe[64]*64riod of time before the formula set forth therein can be used to calculate his average weekly wage. It merely defines that period within which wages must have been earned by the employee in order that they may be considered when calculating his average weekly wage.

In arguing that calculation of the decedents average weekly wage under Section 309(f) would have produced a more favorable figure than that reached by the referee, claimant contends that wages paid to the decedent by prior employers can be considered for the purpose of calculation of benefits. Claimant relies upon the principle of statutory construction that where one section of a statute contains a given provision the omission of that provision from a similar section is significant to show that a different intention existed, Corley v. Pennsylvania Board of Probation and Parole, 83 Pa. Commonwealth Ct. 529, 478 A.2d 146 (1984). She points out that there is language in Section 309(d) of the Act which indicates that the only wages to be considered in computing the average weekly wage of an employee having an occupation that is not exclusively seasonal are those paid by the employer liable for compensation. Claimant argues that, in the absence of such language in Section 309(f), wages which were not earned in the employ of the employer liable for compensation can be considered when calculating the average weekly wage under that provision.

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Follett v. WCAB (MASS. MUT. L. INS. CO.)
551 A.2d 616 (Commonwealth Court of Pennsylvania, 1988)

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Bluebook (online)
551 A.2d 616, 122 Pa. Commw. 58, 1988 Pa. Commw. LEXIS 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/follett-v-workmens-compensation-appeal-board-pacommwct-1988.