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LEWIS v. PHILADELPHIA TRANSPORTATION COMPANY (09/12/68)

decided: September 12, 1968.

LEWIS, APPELLANT,
v.
PHILADELPHIA TRANSPORTATION COMPANY



Appeal from order of Court of Common Pleas of Philadelphia County, March T., 1967, No. 2961, in case of Mary Lewis v. Philadelphia Transportation Company.

COUNSEL

Milford J. Meyer, with him Eugene John Lewis, for appellant.

Thomas F. McDevitt, for appellee.

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

Author: Watkins

[ 213 Pa. Super. Page 43]

This is an appeal in a workmen's compensation case from an order of the Court of Common Pleas of Philadelphia County dismissing an appeal of the claimant, Mary Lewis, from an order of the Workmen's Compensation Board suspending benefits.

On April 1, 1965, the Workmen's Compensation Board awarded total disability to the claimant for an accident sustained on May 4, 1962. Payments were made until October 23, 1965. The company filed a petition to terminate on October 28, 1965. The Board refused to terminate but changed the disability from total to fifteen per cent. The Board found further that this disability did not prevent the claimant from earning wages equal or in excess of those earned prior to the accident and so suspended payments.

It is difficult to see from this record how it was possible to arrive at that determination. There is no evidence from which it can be determined that the fifteen per cent disability did or did not reflect a reduction in earning power. We find in the record of the original hearing on the accident that her average weekly earnings prior to disability was $74.31. The part-time job which she was provided with by the company and which the medical evidence indicated she could perform was only for four hours daily at $2.75 per hour. She found that she couldn't continue this work but even if we conclude that she was a malingerer

[ 213 Pa. Super. Page 44]

    as the Board seemed to find, the part-time work provided would only give her $55 weekly which on its face discloses a reduction in earning power.

The burden of proof in a petition to terminate is on the employer as is also the burden of proof as to earning power. The case of Crain v. Small Tube Products, Inc., 200 Pa. Superior Ct. 426, 188 A.2d 766 (1963) is of no help to the company because in that case compensation had been suspended by the Board because the employee's earnings were equal to or in excess of the prior earnings. Thereafter, on a claim of change in circumstances, the claimant attempted to establish loss of earnings. In that case the burden was on the claimant to establish the change in circumstances and the Board found that the recurring loss of earnings was not attributable to the accident.

In the instant case the employer had the burden to establish that all disability had ceased but the Board found continuing disability of fifteen per cent. The employer then had the burden of establishing by competent evidence that there was no loss of earning power due to the fifteen per cent disability that resulted from the accident.

"There is a distinction between wages and earning power. Where there is disability and loss of earning power, but the employe receives as much in wages for his services as he did before the injury, an award may be made but the payment of compensation must be suspended: Scipani v. Pressed Steel Car Co., 150 Pa. Superior Ct. 410, 28 A.2d 502 . . ...


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