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LIBERATORI v. SCOTT SMITH CADILLAC CO. ET AL. (11/12/52)

November 12, 1952

LIBERATORI
v.
SCOTT SMITH CADILLAC CO. ET AL.



COUNSEL

David Freeman, Philadelphia, for appellant.

John T. Phillips, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.

Author: Reno

[ 172 Pa. Super. Page 122]

RENO, Judge.

The judgment of the court below affirmed the decisions of the workmen's compensation authorities suspending payments under a compensation agreement, and the claimant appealed.

The facts have been stipulated. Appellant was totally disabled by an injury on December 3, 1947. The total disability ceased on August 13, 1948, since when he has been 15% partially disabled. Appellant's average weekly earnings at the time of the injury were $73.04 per week. Since returning to work on August 13, 1948, because of increases of the wage scale, his average weekly earnings have been $79.56 a week. Before the injury his productive capacity was 65 to 70 flat-rate work hours per week, since then it has been

[ 172 Pa. Super. Page 12355]

to 60 hours. But for his partial disability, his wages would average approximately $99.21 per week.

Appellant contends that, although he now receives more wages than he did before he was injured, the increase is due entirely to a raise of the rate of wages which, even so, are paid in inflated dollars, and that, as a result, he receives no compensation for his partial disability which has decreased his productive power.

The pertinent and controlling legislation is The Pennsylvania Workmen's Compensation Act of June 21, 1939, P.L. 520, § 306(b), as amended, 77 P.S. § 512, which in part provides: 'For disability partial in character * * * sixty-six and two-thirds per centum of the difference between the wages of the injured employe, * * * and the earning power of the employe thereafter; * * *. The term 'earning power,' as used in this section, shall in no case be less than the weekly amount which the employe receives after the accident * * * and in no instance shall an employe receiving compensation under this section receive more in compensation and wages combined than a fellow employe in similar employment.'

This provision was construed in Scipani v. Pressed Steel Car Co., 150 Pa. Super. 410, 28 A.2d 502, which holds that where there is a disability with resultant loss of earning power but the employe receives as much for his services as he earned before the injury, payments of compensation shall be suspended during periods when the disability is not reflected in loss of wages. After reviewing prior legislation and earlier decisions, Judge Hirt, speaking for this Court, declared 150 Pa. Super. at page 415, 28 A.2d at page 504: 'The 1939 amendment refers to the actual amount of wages received regardless of the ...


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