New Bethlehem Volunteer Fire Co. v. Workmen's Compensation Appeal Board

654 A.2d 267, 1995 Pa. Commw. LEXIS 61
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 31, 1995
StatusPublished
Cited by7 cases

This text of 654 A.2d 267 (New Bethlehem Volunteer Fire Co. 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
New Bethlehem Volunteer Fire Co. v. Workmen's Compensation Appeal Board, 654 A.2d 267, 1995 Pa. Commw. LEXIS 61 (Pa. Ct. App. 1995).

Opinion

COLINS, President Judge.

New Bethlehem Volunteer Fire Company and the PMA Group (collectively New Bethlehem) petition for review of an order of the Workmen’s Compensation Appeal Board (Board) which reversed a workers’ compensation referee’s dismissal of Daniel Kemp’s (Kemp) petition for penalty (petition) under the Workers’ Compensation Act (Act).1 For the reasons set forth herein, we reverse the Board’s decision.

The facts in this case are undisputed and summarized as follows. Kemp sustained a disabling injury on September 14, 1991 during the course of his duties as a volunteer fireman2 with New Bethlehem. At the time of his injury, Kemp was an employee of Ti-[268]*268Brook, Inc., a local manufacturing company, with an average weekly wage of $426.98. Pursuant to a notice of compensation payable dated October 15, 1991 Kemp received total disability benefits of $290.67 per week.3 Kemp then filed this petition on April 13, 1992, seeking to increase his disability benefits based on an average weekly wage of $862.93.4

After a hearing at which both parties were represented by counsel and presented evidence, the referee entered findings of fact and conclusions of law denying Kemp’s petition. In denying Kemp’s petition, the referee interpreted Section 601 of the Act5 as establishing a floor to guarantee that volunteer firemen injured in the line of duty would receive, at minimum, weekly disability benefits equivalent to the average worker in the Commonwealth.

On appeal to the Board, Kemp argued that the referee erred as a matter of law in calculating the correct average weekly wage, because reading Section 601 in tandem with Section 309(e)6 of the Act requires adding the wages earned at Ti-Brook to the Section 601 presumption of wages. On April 4, 1994 the Board entered an order reversing the referee’s decision. The Board reasoned that since there was no appellate authority to the contrary, it was constrained to read Section 601 in tandem with Section 309(e). By reading the two sections together, the Board concluded that Kemp is entitled to benefits according to a weekly wage calculation of the sum of the Statewide Average Weekly Wage pursuant to Section 601 of the Act and Kemp’s average weekly wage from his employment with Ti-Brook. This petition for review followed.

New Bethlehem raises one issue for this Court’s consideration: whether Sections 601 and 309(e) of the Act permit a volunteer fireman to aggregate the minimum presumed average weekly wage under Section 601 with his actual wage, as if he had concurrent employment so as to increase his average weekly wage, and resulting in the payment of higher benefits. Kemp argues that as a matter of law, a claimant who is injured in the scope of his duties as a volunteer fireman is entitled to an average weekly wage which is calculated to include the presumed Average Weekly Wage pursuant to Section 601 of the Act, and the concurrent average weekly wage of the claimant’s employment with a separate employer pursuant to Section 309(e) of the Act.

When addressing a petition for review of a Board decision, this Court’s scope of review is limited to determining whether claimant’s constitutional rights were violated, an error of law was committed, or the findings of fact are supported by substantial evidence. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988), appeal after remand on other grounds, 143 Pa.Commonwealth Ct. 69, 598 A.2d 602 (1991).

Preliminarily, we note that contrary to the Board’s reasoning, the Superior Court of Pennsylvania decided a similar issue in Hartmann v. Commissioners of Abington Township, 165 Pa. Superior Ct. 316, 67 A.2d 785 (1949), which now provides us with guidance. In Hartmann, a self-employed individual was injured in the scope of his duties as a volunteer fireman. That court, addressing the issue of concurrent employment and volunteer firemen stated:

[269]*269Section 309 of the Act, 77 P.S. § 582, provided that all ‘wages’ earned under concurrent contracts with two or more employers shall be considered as if earned from the employer liable for compensation. This has been utilized where a claimant volunteer fireman earned wages from some other employer. This is fictitious, for a thing can only ‘concur’ with another thing. Thus, there can be no “concurrent” wages where only one wage is earned, and nothing (the unpaid services of a volunteer fireman) is added.

Id. at 318, 67 A.2d at 786 (emphasis in original).

In the case sub judice, each party argues an exactly inapposite interpretation of the above mentioned provisions of the Act. Therefore, our analysis is based on statutory interpretation and the Statutory Construction Act of 1972.7

Section 1921 of the Statutory Construction Act dictates:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequence of a particular interpretation.
(7) The contemporaneous legislative history.
(8) legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921. Section 601 of the Workers’ Compensation Act provides, in pertinent part:

(a) In addition to those persons included within the definition of the word “employe” as defined in section 104, “employe” shall include:
(1) members of volunteer fire departments or volunteer fire companies, ... while actively engaged as firemen....
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(b) In all eases where an injury which is compensable under the terms of this act is received by an employe as defined in this section, there is an irrebuttable presumption that his wages shall be at least equal to the Statemde average weekly wage for the purpose of computing his compensation. ...

77 P.S. § 1031 (emphasis added).

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Bluebook (online)
654 A.2d 267, 1995 Pa. Commw. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-bethlehem-volunteer-fire-co-v-workmens-compensation-appeal-board-pacommwct-1995.