527 A.2d 625 | Pa. Commw. Ct. | 1987
Opinion by
Robert L. Adams (petitioner) appeals a decision of the Workmens Compensation Appeal Board (Board) which dismissed the petitioners petition to review a notice of compensation payable. We affirm.
The petitioner was employed by Frank D. Suppa Logging .(employer) as a logger until October 20, 1979, when he sustained a work-related injury. Prior to this
Following his injury, the petitioner received benefits pursuant to a notice of compensation payable. He subsequently filed a petition to review the notice of compensation, alleging that it was incorrect in that it did not include the payments for equipment rental in determining his average weekly wage.
The referee found that the petitioners arrangement for payment was common practice in the logging industry and held that the petitioner had failed to meet his burden of proving that the notice of compensation payable was incorrect. The Board affirmed the referees decision on the, basis that the petitioner had failed to show what part of the equipment rental payments, if any, was in the nature of wages and what portion was for fuel, maintenance and depreciation in connection with the use of his power saw.
The petitioner, seeking to modify the compensation agreement, has the burden of proving that there was a
The petitioner contends initially that the Board erred as a matter of law in determining that the rental payments were not to be included in calculating the average weekly wage under Section 309(e) of The Pennsylvania Workmens Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §582(e).
Section 309(e) sets forth the types of remuneration that shall be included in computing the average weekly wage. Nowhere in this subsection is there any reference to payments for the rental of equipment. Inasmuch as Section 309(e) does not refer to such payments, we must conclude that the legislature intended to exclude them from wage computation. See Glinka v. Workmen's Compensation Appeal Board (Sears, Roebuck and Co.), 75 Pa. Commonwealth Ct. 504, 462 A.2d 909 (1983).
The petitioner also contends that his agreement with the employer was in fact a sham and that he should not be penalized for having entered into such an agreement. We cannot agree. The petitioner voluntarily entered into this agreement when it was more profitable for him to supply his own chain saw at a high per diem rental rate than to have received wages. He now realizes that it would be financially advantageous for purposes of workmens compensation law for the rental payments to be interpreted as wages. The petitioner cannot have it both ways.
We note that both parties entered into an agreement which may have come dangerously close to circumventing the intent of federal and/or state withholding, social security, and unemployment compensation laws. By this decision we are not condoning such conduct. However, the referee as fact finder, has found
Accordingly, for the foregoing reasons, the order of the Board is affirmed.
Order
And Now, this 19th day of June, 1987, the order of the Workmens Compensation Appeal Board in the above-captioned matter is affirmed.