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BENEDICT v. FOX ET AL. (04/13/60)

April 13, 1960

BENEDICT
v.
FOX ET AL., APPELLANTS.



Appeal, No. 455, Oct. T., 1959, from judgment of Court of Common Pleas of Cameron County, May T., 1957, No. 27, in case of Anthony Benedict v. John Fox et al. Judgment affirmed.

COUNSEL

R. T. Mutzabaugh, for appellants.

Robert Lea Wolfe, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Watkins

[ 192 Pa. Super. Page 199]

OPINION BY WATKINS, J.

This is a workmen's compensation case involving the proper application of the formula set forth in the Act of August 24, 1953, P.L. 1382, § 306(b), 77 PS § 512, for the determination of partial disability payments, which reads as follows: "For disability partial in character (except the particular cases mentioned in clause (c)) sixty-six and two-thirds per centum of the difference between the wages of the injured employe, as defined in section three hundred and nine, and the earning power of the employe thereafter; but such compensation shall not be more than twenty-three dollars per week. This compensation shall be paid during the period of such partial disability, not, however, beyond three hundred and fifty weeks after the seventh day of disability. Should total disability be followed by partial disability, the period of three hundred and fifty weeks mentioned in this clause shall be reduced by the number of weeks during which compensation was paid for total disability. 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 shall in no case be less than five times his actual daily wage as fixed by the day, hour or by the output of the employe, 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."

The claimant is a laborer who was injured in the course of his employment and was paid compensation by agreement for total disability. The proceedings important to this decision stem from a rehearing of a petition to terminate on the ground that disability had ceased. The referee found that the claimant was fifteen per cent partially disabled; that his wages at the time of the accident were $89.60 weekly, and that his earning power since his return to work was $50 weekly. The

[ 192 Pa. Super. Page 200]

    referee first made the following conclusion of law: "The claimant, although still suffering from a 15 percent partial disability, has been, since January 1, 1957, steadily employed earning $50.00 per week and therefore is entitled to compensation only for the loss in earning power suffered by him since January 1, 1957, with the defendant and defendant's compensation insurance carrier to be given credit for any compensation paid in excess of $23.00 per week, the maximum compensation for partial disability in view of claimant's loss of earning power of $39.60 per week."

He later amended this conclusion to read as follows: "Claimant, although still suffering from a 15 percent partial disability, has been, since January 1, 1957, steadily employed earning $50.00 per week and therefore is entitled to compensation only for the loss in earning power suffered by him since January 1, 1957, in the amount of 66 2/3 per cent of 15 per cent of $39.60, being $3.96 per week loss of earning power since January 1, 1957, with the defendant and defendant's compensation insurance carrier to be given credit for any compensation paid in excess of $3.96 per week since January 1, 1957."

The Workmen's Compensation Board, on appeal, found that the referee had correctly resolved the matter by his first conclusion, which the board adopted by vacating and setting aside the latter conclusion. The Court of Common Pleas of Cameron County, on appeal, affirmed the decision of the board.

The issue is simple. The appellants contend that under the Act the amount of compensation to which the claimant is entitled for partial disability should be arrived at by the following formula, which the referee followed, to wit: 66 2/3 per cent of 15 per cent (the finding of partial disability) of ...


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