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MICHAEL v. ROADWAY EXPRESS (11/16/67)

decided: November 16, 1967.

MICHAEL
v.
ROADWAY EXPRESS, INC., APPELLANT



Appeal from judgment of Court of Common Pleas of Philadelphia County, March T., 1967, No. 3265, in case of James R. Michael v. Roadway Express, Inc.

COUNSEL

Charles F. Quinn, with him Sheer & Mazzocone, for appellant.

Martin Heller, with him Maximillian J. Klinger, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 211 Pa. Super. Page 239]

This is an appeal from the Court of Common Pleas of Philadelphia County affirming a decision of the Workmen's Compensation Board upholding a referee's

[ 211 Pa. Super. Page 240]

    award of $37.50 per week*fn1 to claimant James R. Michael, on the basis of a 50% permanent partial disability. Roadway Express, the appellant, concedes the existence of disability but alleges error in the award.

Claimant, while in the employ of appellant, sustained an injury to his right forearm on June 18, 1964. On June 23, he entered an open agreement with his employer's insurance carrier for payment of compensation of $47.50 per week based on an average weekly wage of $138.15. Compensation was paid until October 13 pursuant to the agreement, and a final receipt was executed on December 17. On August 9, 1965 claimant filed a claim petition with the Bureau of Workmen's Compensation alleging disability from the date of the accident. Roadway denied disability, asserting its cessation on October 13, 1964.

At the hearing before the referee it was disclosed that after the accident claimant worked sporadically with Roadway and two other employers from October 13, 1964 to December, 1965 and that claimant collected unemployment compensation benefits during times in this period when he was unemployed. Roadway contends that claimant earned "substantially the same money after the accident that he was making before the accident"; that claimant terminated his employment with Roadway because of a strike and left his succeeding two jobs because of industrial layoffs, which disqualified him for compensation; and further, as a matter of law, that claimant cannot simultaneously collect benefits under both the Workmen's Compensation and Unemployment Compensation Acts.

The board found that claimant's work history following the accident clearly indicated that he worked less than one half of the period from October, 1964 to

[ 211 Pa. Super. Page 241]

December, 1965 and that this loss of time was due to his inability to perform the laboring work in which he was engaged prior to his accident. The board found competent evidence to sustain the referee both on the fact of disability and the percentage loss of earning power. As to appellant's allegation of illegality in receiving benefits for disability and unemployment, the board stated, "A claimant may be entitled ...


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