Glinka v. Workmen's Compensation Appeal Board

462 A.2d 909, 75 Pa. Commw. 504, 1983 Pa. Commw. LEXIS 1778
CourtCommonwealth Court of Pennsylvania
DecidedJuly 18, 1983
DocketAppeals, Nos. 1055 C.D. 1981 and 1309 C.D. 1981
StatusPublished
Cited by23 cases

This text of 462 A.2d 909 (Glinka 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
Glinka v. Workmen's Compensation Appeal Board, 462 A.2d 909, 75 Pa. Commw. 504, 1983 Pa. Commw. LEXIS 1778 (Pa. Ct. App. 1983).

Opinion

Opinion by

Judge Williams, Jr.,

William Glinka (claimant) and Sears, Roebuck and Company (Sears or employer) both appeal from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed as modified a referee’s order from which claimant, and not employer, appealed.

On September 30, 1972, while employed by Sears as a debt collector, claimant suffered lower back injuries in an automobile accident. By agreement, claimant received compensation at a rate of $80.00 per week until he returned to work on November 27, 1972, and executed a final receipt which terminated benefits. Upon the recurrence of his disability, claimant left work on January 8, 1973, and entered into a supplemental compensation agreement (with Sears) guaranteeing claimant compensation at a rate of $80.00 per week for the duration of his total disability and payment of all hospital and medical expenses related thereto.1

[507]*507On February 24, 1975, claimant filed a petition to modify the supplemental compensation agreement alleging, inter alia, that Sears had failed to pay claimant’s medical and hospital expenses engendered by the accident. After two hearings (at which employer adduced no evidence) the referee, on July 20, 1976, found that claimant was owed compensation at a rate of $94.00, and not $80.00 per week;2 that employer was liable for payment of all medical expenses resulting from claimant’s injury and legal costs in prosecuting the claim; that 10% interest per annum be assessed on all (non-medical) deferred compensation; and, that attorney’s fees equalling 20% of claimant’s initial gross recovery (not future compensation) be imposed. Both sides appealed.

[508]*508The Board affirmed the referee’s order regarding employer’s obligation to satisfy all medical and legal expenses, and modified the order by assessing interest on all (medical and non-medical) deferred compensation and awarded attorney’s fees based on the initial recovery and future compensation. Concluding that the referee erred in deeming reimbursed mileage expenses as compensation, the Board reduced claimant’s award to $87.50.3 Additionally, the Board remanded to determine whether claimant’s counsel was entitled to counsel fees greater than 20% and on the question of penalties.

In a decision dated October 5, 1978, the referee awarded attorney’s fees equivalent to 30% of the gross recovery (which included wage loss compensation and all medical expenses accruing to the date of the decision) and all future compensation; a penalty equal to 10% of the gross recovery was also assessed against employer.4

Claimant, but not the employer, appealed from the referee’s order of October 5, 1978. The Board in a decision dated April 23, 1981, dismissed claimant’s appeal and, except for minor modifications,5 affirmed [509]*509the referee’s October 1978 order. Both claimant and employer appealed to this Court.

Raising a multitude of issues claimant maintains that he is entitled to weekly compensation at a rate of $94.00; that a 20% (rather than 10%) penalty be assessed against employer; that counsel fees be increased beyond 30% of the award; that interest be assessed on attorney’s fees that remained unpaid despite the referee’s decision of August 1976 imposing such fees; that attorney’s fees be deducted from the award prior to payment of medical expenses; and, that counsel fees be imposed upon the penalty award.

Claimant first maintains that promised salary increases, mileage reimbursements and fringe benefits are to be included in the average weekly wage computation under Section 309 of the Act, 77 P.S. §582, thus entitling claimant to weekly compensation of $94.00 and not $87.50. Section 309 at subsection (e), however, specifically denominates the types of remuneration included in the “average weekly wage” and “total wages” computation.

While board and lodging received from the employer and tips and gratuities equalling at least one-third of an employe’s remuneration are specifically designated as wages under Section 309(e), the subsection omits any reference to the inclusion of prospective salary increases, mileage reimbursements and fringe benefits as wages. Guided by the maxim “expressio unius est exclusia alterius” (that is, where certain things are specifically designated in a statute, all omissions should be understood as exclusions) we must conclude that the Legislature, by omitting any reference to promised salary increases, mileage reimbursements and fringe benefits from the computation of wages under Section 309(e), sought to exclude these items from wage computation. See, Latella v. Unemploy[510]*510ment Compensation Board of Review, 74 Pa. Commonwealth Ct. 14, 459 A.2d 464, 473 (1983).

Additionally, claimant contends that having been employed by Sears for less than one calendar quarter (nine weeks), and having worked for another employer for two completed calendar quarters at a higher wage immediately prior to joining Sears, that the optional wage computation provision of Section 309(e) is applicable to claimant’s situation. Section 309(e) states in pertinent part:

If under clauses (a), (b), (c), (d) and (e) of this section the amount determined is less than if computed as follows, this computation shall apply, viz: divide the total wages earned by the employe during the last two completed calendar quarters with the same employer by the number of days he worked for such employer during such period multiplied by five.

Unfortunately, while claimant testified that he earned $150.00 weekly with his previous employer of six months, neither the Board nor referee made findings setting forth the existence, duration and rate of compensation of claimant’s prior employment. While mindful of the protracted nature of this litigation, we remand the issue of claimant’s prior employment under Section 309(e) to the Board for due consideration. See, Cleland Simpson Company v. Workmens Compensation Appeal Board, 16 Pa. Commonwealth Ct. 566, 573-74, 332 A.2d 862, 866-67 (1975).

Claimant next argues that a penalty of 20% rather than 10% should have been imposed. Section 435(d) (i) of the Act, 77 P.S. §991(d)(i), provides for the discretionary imposition of a 10% penalty on employers and insurers, except in cases of unreasonable or excessive delay, in which case a 20% penalty may be imposed. While the record and referee’s findings certainly rebuke employer, we will not disturb the referee’s ex[511]*511ercise of discretion. See, Lord v. Workmen’s Compensation Appeal Board, 38 Pa. Commonwealth Ct. 626, 632, 395 A.2d 598, 601-02 (1978).

Claimant further asserts that interest should be assessed against counsel fees which employer allegedly delayed in paying for approximately three years; that counsel fees should be assessed against penalties imposed; that counsel fees should be deducted from medical benefits prior to payment to health providers; and, that counsel fees should be increased beyond 30%.

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Bluebook (online)
462 A.2d 909, 75 Pa. Commw. 504, 1983 Pa. Commw. LEXIS 1778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glinka-v-workmens-compensation-appeal-board-pacommwct-1983.